During an interview with the Ottawa Law Review, Louise Arbour, the Chief Prosecutor for the ICTY and ICTR, explained why she focused her prosecution efforts on a few senior officials, like Slobodon Milošević, instead of a larger number of lower-level perpetrators. More specifically, she pointed out that even though the low-level perpetrators were the ones who “actually killed hundreds of people,” logistical problems like the capacity of the courts, as well as political issues, forced the courts to focus their resources on the leaders and deem them “most responsible.”14 In all, it is clear that the focus on senior leadership as those most responsible has a long history in international criminal courts and that its justifications are varied. What is not clear, however, is that this self-imposed limitation on the gravity criteria is working for the ICC.

III. Argument

In order to increase the ICC’s perceived and actual effectiveness, the OTP should prosecute anyone the Court can actually capture. This might mean that the OTP would have to devote more resources towards prosecuting lower—and middle-level perpetrators instead of limiting the Court’s efforts to senior perpetrators. Necessarily, this requires an assumption at the outset that the difficulties posed by the arrest question will resolve themselves. And while senior perpetrators should be held accountable, the OTP should shift some of its focus to include so-called “little fish” for two main reasons:

1. it could lead to an increased deterrent effect on the rank and file who physically commit atrocities, and

2. it may improve the public perception of the ICC as a larger number of perpetrators are convicted.

By expanding the “most responsible” criteria to include rank-and-file perpetrators the Court could alleviate two major problems facing the Court today.

A. Prosecuting Everyone the Court Can Apprehend Could Increase the Prosecutorial and Social Deterrent Power of the Court

As enumerated in the Preamble of the Rome Statute, one of the foundational goals of the ICC, as an institution, is to “contribute to the prevention of” atrocities.15 In other words, one of the primary aims of the States Parties, through the Court, is to deter these crimes from happening in the first place. The notion of deterrence, as it is commonly understood, is an umbrella term for several preventative forces. For this comment, however, I will focus on the effectiveness of the ICC as a prosecutorial and social deterrent. Prosecutorial deterrence is the idea that the threat of formal punishment will prevent would-be perpetrators from committing crimes in the first place.16 Social deterrence, meanwhile, “occurs when potential perpetrators calculate the informal [social] consequences of law breaking.”17

According to a 2017 study by Geoff Dancy, the ICC’s current ability to deter violence comes from its “role as a ‘stigmatizer’ in the international community,” not from “its ability to sanction abusive actors.”18 In other words, people are more responsive to the ICC’s social deterrent power than its prosecutorial deterrent power. This is unsurprising given that “ICC attention brings with it a kind of international opprobrium that is virtually unparalleled in the field of human rights” even though the ICC has only sentenced a total of nine perpetrators to prison since the Court’s foundation.19 It is understandable, then, when some ICC critics conclude that the Court’s ability to deter atrocity crimes through prosecutions is mere “wishful thinking.”20

In general, the effectiveness of a prosecutorial deterrent is dependent on a kind of internal calculus where a would-be perpetrator weighs the perceived costs of committing a crime against the perceived benefit. To oversimplify, the cost portion of that calculus may be: (perceived severity of punishment) x (perceived probability of punishment). For example, suppose a person believes that the likelihood of being punished is high and that the punishment they would face is severe for a given crime. In that case, they are less likely to commit that crime, assuming that the perceived benefit remains constant. This means that a prosecutorial deterrence’s effectiveness can be enhanced either by making the punishment more severe or by increasing the likelihood of prosecution. Right now, multiple factors decrease the perceived possibility of prosecution for perpetrators. At least one of those factors is self-inflicted. The ICC effectively chooses not to prosecute low—and middle-level perpetrators even when it could because it dedicates its resources almost exclusively to the prosecution of high-ranking perpetrators.

Prosecuting everyone that the ICC can apprehend, regardless of their level of seniority, could go a long way in deterring violence. It is critical to keep in mind that it is triggermen, and not leaders, who are usually the ones that physically commit the atrocity crimes. They are, in a very real sense, the ones most responsible. And until now, their low status in the power hierarchy has given them a kind of de facto immunity from ICC prosecution. This is because the ICC is not pursuing rank-and-file perpetrators with the same effort as it pursues senior perpetrators. Additionally, at least in the ICTY and ICTR, little fish were often flipped and given immunity to procure evidence on high-ranking officials.21 This implies that the threat of ICC prosecution is not deterring small and mid-sized fish because the possibility of punishment is so low for them. However, if the OTP dedicated more resources to prosecuting the rank-and-file, this should increase the probability of their incarceration. This could, in turn, increase the ICC’s deterrent effect on those who physically commit the crimes. More specifically, the ICC should prosecute anyone it can get its hands on instead of creating a self-imposed limitation on the Court’s prosecutorial deterrent power.

Additionally, if the ICC is following the sentencing practices of the ICTY and the ICTR,22 the Court is likely not maximizing its deterrent effect on low—and mid-level perpetrators even when the Court does prosecute them. According to Doherty and Steinberg’s empirical analysis of sentencing at the ICTY and ICTR:

[T]he descriptive statistics suggest that the higher the defendant’s authority or the more central the defendant’s role in the crime (as personally ordering or personally the committing the underlying offense, the longer the sentence.

In general, however, “the higher the rank or political authority of the perpetrator, the longer the sentence.”24 Two conclusions can be drawn from this for the purposes of this comment. First, the punishments for low-level perpetrators were lower than the punishments for mid-level and high-level perpetrators.25 Second, it illustrates that perpetrators in the middle of the criminal hierarchy received lower sentences than those who personally committed or directly ordered crimes.26 Taken together, both the “middle-managers” and low-ranking perpetrators received shorter sentences than leaders. This implies that the “severity of punishment” portion of the deterrent calculus is also lighter for low—and mid-level criminals when they are actually prosecuted. Therefore, the Court can increase its prosecutorial deterrent effect first by prosecuting everyone it can and then by increasing the sentence lengths for the low—and mid-level criminals that it does prosecute.

Increasing the total number of convictions and sentencing lengths for low and mid-ranking criminals could also increase the Court’s social deterrent power. As the Court becomes more efficient, it could become even more legitimate. This increase in the Court’s legitimacy could heighten the “opprobrium” that comes from an investigation by the Court. This brings us to the next matter: the legitimacy of the Court.

B. Casting a Wider Net Could Increase the Court’s Effectiveness and Therefore Its Perceived Legitimacy

Like virtually every public institution, the Court’s legitimacy largely depends on the public’s perception of it. Actively pursuing all levels of the criminal hierarchy could improve the public perception of the Court in two ways. First, it could lead to a larger number of arrests and convictions, which could improve the perceived effectiveness of the Court at holding perpetrators accountable. Second, it would align the Court’s actions with the idea of individual criminal responsibility, which is one of the Court’s foundational principles.

The Preamble of the Rome Statute declares that the States Parties, through the Court, will be “[d]etermined to put an end to impunity for the perpetrators of” atrocity crimes.27 So far, the Court has at best only lessened the impunity for high-level perpetrators. Since the foundation of the ICC, the Court has indicted fifty-two people.28 Of those fifty-two indictments, there have been forty arrest warrants issued, resulting in twenty-one people being detained and a total of ten convictions.29 This is the result of investigations into seventeen different situations involving the murder, torture, and rape of millions of victims.30 No matter the seniority level of the convicted, ten convictions is not enough. It is time for the Court to change course. Attempting to prosecute everyone who commits these atrocities is one way that the Court could create a level of proportionality between the magnitude of the crime and the breadth of the punishment. Accordingly, trying and convicting a larger number of low—and mid-level perpetrators, instead of just a small number of senior actors, could bring the ICC back in line with its stated goals. This could, in turn, improve its public perception and legitimacy.

The Court has consistently held itself out as an advocate for victims and their claim to justice. The Court has also stated that bringing perpetrators to account for those victims is one of their top priorities.31 Casting a wider proverbial net through the gravity threshold could also bring the Court in line with those foundational principles of individual criminal responsibility and accountability for victims. In fact:

Some might contend that victims and survivors would derive more satisfaction from participation in trials leading to convictions of their actual torturers and rapists; that both groups might find greater catharsis from seeing such persons in the dock than from seeing their commanders—usually strangers to those victimized—who gave impersonal orders or encouraged such crimes generally.32

By artificially narrowing the type of perpetrators that can be prosecuted, and affirmatively choosing not to prosecute triggermen, the Court is not living up to its promises. Triggermen are the ones who actually commit the crimes, and yet they are functionally absolved of accountability because they are not high enough up the ladder. By prosecuting the rank and file, in addition to leaders, the Court can better uphold its promise to bring justice for all victims and increase its perceived legitimacy and effectiveness.

IV. Counterarguments

When dealing with a contentious topic, there are doubtless many arguments that could be made in favor of preserving the status quo. However, three points of contention require specific attention:

1. the Court’s limited resources;

2. the scarcity of evidence on rank-and-file perpetrators, and

3. the potential ineffectiveness of deterrence on low-level perpetrators.

A. The Court’s Limited Resources

The first counterargument that must be addressed is the Court’s limited resources. More concretely, a critic may argue that the Court lacks the financial and logistical resources to prosecute everyone who commits atrocity crimes within its jurisdiction. Therefore, the Court’s limited resources are better spent prosecuting only the top brass traditionally viewed as those “most responsible.”

This counter is unpersuasive for a few reasons. First, it seems highly unlikely that the Court is operating at its maximum efficiency. Between 2003 and 2021, the ICC spent over $2 billion, captured twenty-one suspects, and convicted ten people.33 While it is not totally accurate to say that it costs the ICC a little more than $200 million per conviction, it does not seem plausible that the Court’s resources are being allocated efficiently while it only pursues top-level suspects. Moreover, triggermen, compared to high-level officials, have fewer resources to evade capture and prosecution, which could decrease the cost of prosecution on average for the Court. It has also been argued that a larger docket could increase the efficiency of the Court because it would force the Court to create more efficient policies demanded by a larger docket.34

In a best-case scenario, this could mean that it might be cheaper on a per-suspect basis to pursue low-level perpetrators, which could lead to a larger number of total convictions for the same amount of money. As previously mentioned, this increase in total convictions could increase both the Court’s perceived legitimacy as well as its prosecutorial and social deterrent power. More importantly, though, this counterargument puts the cart before the horse. Before we worry about whether the Court has enough resources to prosecute a full dock, the Court should worry about filling the dock.

B. The Scarcity of Evidence on Rank-and-File Perpetrators

The next potential counterargument is that going after lower-level perpetrators will be less fruitful because it is harder to gather sufficient evidence on low-level perpetrators than high-level ones. One reason it might be harder is because the requisite mens rea is higher for low-level perpetrators than for top-level perpetrators. More specifically, the Prosecutor only needs to show that top-level suspects knew or should have known about the atrocities.35 In contrast, the Prosecutor needs to show that the low-level perpetrators had some level of intent for their own actions.36 Additionally, the acts of low-level perpetrators are imputed to the senior perpetrators, but each individual low-level perpetrator is only responsible for their own actions.37 One may argue, therefore, that the ICC’s resources are better spent when they are focused solely on high-level perpetrators.

While the decreased mens rea requirement for top-level suspects should make it easier to convict them than low-level perpetrators as an evidentiary matter, it does not appear that the Court has leveraged that theoretical advantage into more convictions. Additionally, there can be no atrocity crimes if someone does not commit atrocity crimes. In other words, there must have been evidence of some atrocity attributable to a low-level perpetrator for a high-level perpetrator to be held liable.38 Finally, the Court already has a plethora of evidence-gathering techniques, many of which the Court can repurpose to go after smaller fish.39

C. The Potential Ineffectiveness of Deterrents on Low-Level Perpetrators

The final counter to be addressed relates to the ability of the ICC to deter low-level perpetrators in general. An underlying assumption of deterrence theory is that a perpetrator has the ability to choose whether they commit a crime. This assumption is implicit in the calculus laid out in Section III(A) above because, without the ability to choose whether to commit a crime, the balancing of choices is meaningless. Critics argue that low-level perpetrators lack the choice-making ability required for effective deterrence. More specifically, they argue that in the severe, hierarchical structure that most of these perpetrators operate, triggermen have little to no autonomy regarding whether or not to follow orders.40 This is the case, they argue, because triggermen who refuse to follow orders might be killed for it. Therefore, dedicating more resources to prosecuting low-level perpetrators would be pointless from a deterrence standpoint because the triggermen fundamentally cannot be deterred.

The problem with this argument is that it is equally applicable to everyone in a hierarchy aside from the person at the very top of it. Imagine a ladder where each rung represents a person who can punish any rung below them for insubordination. It would be true that the lowest rung has the highest absolute number of people they can be punished by. But it is not clear that a middle—or high-level rung faces any less pressure from those above them than the lowest rung does. Additionally, in many Western legal systems, defenses of necessity, coercion, and duress are not defenses to murder. One of the policies behind that rule is that no matter the pressure exerted on someone, the legal system does not accept that it justifies murder.41 A similar principle is at work here.

V. Conclusion

For the preceding reasons, the deterrent power and legitimacy of the ICC could be increased if the OTP cast a wider net and prosecuted both little and big fish. By reevaluating the factors the Court uses to determine who is “most responsible” through the gravity criteria to include rank-and-file perpetrators, the Court might be able to better deter those committing atrocities and simultaneously increase its legitimacy. The deterrent power of the Court could be increased by changing the cost-benefit calculus of rank-and-file perpetrators before committing atrocity crimes. First, this can be done by increasing the perceived possibility of prosecution for these criminals by casting a wider net and prosecuting everyone the Court can apprehend. Second, the Court can increase the “severity of punishment” factor of the deterrent calculus by increasing the sentences of low—and mid-level perpetrators when they actually do get prosecuted. As the Court’s perceived effectiveness rises and creates a level of proportionality between the magnitude of the crimes committed and the breadth of the punishment, the Court and its legitimacy will benefit.

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

1. 1.

   About the Court, Int’l Crim. Ct., available online (last visited Nov. 26, 2023). ↩

2. 2.

   Ward Ferdinandusse & Alex Whiting, Prosecute Little Fish at the ICC, 19 J. Int’l Crim. Just. 759, 759 (Sep. 2021), paywall, doi. ↩

3. 3.

   Id. ↩

4. 4.

   Id. at 760. ↩

5. 5.

   Id. at 762. ↩

6. 6.

   Id. ↩

7. 7.

   United Nations Security Council, Statute of the Special Court for Sierra Leone, Arts. 1, 6 (Jan. 16, 2002) [hereinafter SCSL Statute], available online. ↩

8. 8.

   Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, 2329 U.N.T.S. 117, Art. 1 (Jun. 6, 2003) [hereinafter ECCC Statute], available online, archived

   (listing specifically “tribal senior leaders” as the target of prosecution). ↩

9. 9.

   Office of the Prosecutor, ICC, Paper on Some Policy Issues Before the Office of the Prosecutor, 7 (Sep. 2003), available online. ↩

10. 10.

    Press Release, ICTY, The Judges of the Tribunal for the Former Yugoslavia Express Their Concern Regarding the Substance of Their Programme of Judicial Work for 1995 (Nov. 1, 1995), available online. ↩

11. 11.

    Julian Davis Mortenson, Book Review: This Very Human Institution: A Biography of the Yugoslavia Tribunal, 13 CJEL 471, 478 (Jan. 2007), available online. ↩

12. 12.

    Alette Smeulers, A Criminological Approach to the ICC’s Control Theory in The Oxford Handbook of International Criminal Law 379, 380 (Kevin Jon Heller, Frédéric Mégret, Sarah MH Nouwen, Jens David Ohlin & Darryl Robinson eds., 2020), available online, doi

    (arguing for “control theory” of international justice, namely that the “political leaders and criminal masterminds” should be the ones held primarily responsible for “creating [the] context, which instigates and induces others to commit such crimes.”). ↩

13. 13.

    International Criminal Tribunal for the Former Yugoslavia, Rules of Procedure and Evidence, R. 28(A) (Feb. 11, 1994, as amended Jul. 8, 2015), available online. ↩

14. 14.

    An Interview with the Honourable Madam Justice Louise Arbour, 46 Ottawa L. Rev. 383, 399 (Nov. 21, 2014) [hereinafter Arbour Interview], available online. ↩

15. 15.

    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, available online. ↩

16. 16.

    Hyeran Jo & Beth A. Simmons, Can the International Criminal Court Deter Atrocity?, 70 Int’l Org. 443, 443 (Jul. 8, 2016), paywall, doi, earlier version (Mar. 7, 2016) available online. ↩

17. 17.

    Id. at 444. ↩

18. 18.

    Geoff Dancy, Searching for Deterrence at the International Criminal Court, 17 Int’l Crim. L. Rev. 625, 626 (Jun. 2017), paywall, doi. ↩

19. 19.

    Id. at 634; About the Court, supra note 1.

    (The ICC’s website lists a total of ten convictions).

    List of People Indicted in the International Criminal Court, Wikipedia, available online (last visited Dec. 18, 2023).

    (According to a running tally on Wikipedia, nine of the convicted ten have served or are serving prison sentences). ↩

20. 20.

    Jack Goldsmith & Stephen Krasner, The Limits of Idealism, 132 Daedalus 47, 55 (2003), available online. ↩

21. 21.

    Arbour Interview, supra note 14, at 399. ↩

22. 22.

    Because the ICC has only sentenced nine people, it is difficult to draw conclusions about the Court’s sentencing practices. In the absence of demonstrable ICC practices, the ICTY and ICTR can serve as instructive proxies. ↩

23. 23.

    Joseph W. Doherty & Richard H. Steinberg, Punishment and Policy in International Criminal Sentencing: An Empirical Study, 110 Am. J. Int’l L. 49, 70 (2016), paywall, doi. ↩

24. 24.

    Id. at 75. ↩

25. 25.

    Id. at 74.

    (For example, low-level perpetrators were less likely to receive life sentences than mid-level perpetrators, and mid-level perpetrators were less likely to receive life sentences than high-level perpetrators). ↩

26. 26.

    Id. at 70.

    (When comparing mid-ranking perpetrators to those who personally committed crimes, mid-ranking perpetrators had lower sentences at the respective 25th, 50th, and 75th percentiles). ↩

27. 27.

    Rome Statute, supra note 15, at Preamble. ↩

28. 28.

    About the Court, supra note 1. ↩

29. 29.

    Id. ↩

30. 30.

    Situations under Investigation, Int’l Crim. Ct., available online (last visited Nov. 26, 2023). ↩

31. 31.

    See generally Victims, Int’l Crim. Ct., available online (last visited Nov. 26, 2023). ↩

32. 32.

    Jose E. Alvarez, Rush to Closure: Lessons of Tadić Judgment, 96 Mich. L. Rev. 2031, 2092 (Jun. 1998), paywall, doi. ↩

33. 33.

    Budget, ASP, available online (last visited Dec. 18, 2023). ↩

34. 34.

    Dancy, supra note 18, at 626. ↩

35. 35.

    Rome Statute, supra note 15, at Art. 28. ↩

36. 36.

    See id. Arts. 6, 7, 8. ↩

37. 37.

    See id. Art. 28.

    (More concretely, the atrocity crimes of subordinates can be imputed to their superiors, but the atrocity crimes of superiors cannot be imputed to their subordinates). ↩

38. 38.

    See Mark Kersten, Big Fish or Little Fish—Who Should the International Criminal Court Target?, Just. in Conflict (Sep. 1, 2016), available online.

    (The relatively fast capture and conviction of Ahmad al Faqi al Mahdi in 2016, who was perceived as a somewhat “little fish,” demonstrates that the Court has the ability to gather enough evidence on little fish to get convictions). ↩

39. 39.

    See Dia Kayyali, Raja Althaibani & Yvonne Ng, Digital Video Evidence, When Collected, Verified, Stored, and Deployed Properly, Presents New Opportunities for Justice, ICC Forum (Jun. 1, 2020), available online. ↩

40. 40.

    Smeulers, supra note 12, at 387. ↩

41. 41.

    See Regina v. Dudley and Stephens, 14 QB 273 (Dec. 9, 1884), available online. ↩

From the provisions of article 17(1) outlined above, we see that there are four requirements on the question of admissibility of matters before the court. The question of whether a case is of sufficient gravity to justify further action, is the fourth and final requirement in the proceedings before the ICC Pre-trial chamber to determine admissibility under the Rome Statute. Positively read and construed, the listing of the requirement of sufficiency of gravity under article 17(1)(d) must be considered in an overarching, contextualized approach taking into account all the other three requirements under article 17(1)(a)-(c), and not independently.

The essence of article 17(1)(d) of the Rome Statute is that a case shall be found inadmissible before the ICC if it is not of sufficient gravity to justify further action by the court. In terms of this criterion, however, the gravity or seriousness of the crime is the basis for determining which cases will be admissible in the ICC, be judicially dealt with in terms of the Rome Statute. It entails that where it is established that no sufficient gravity exists, then no further action is justified. What amounts to further action is not expressly stipulated in the immediate text of the Rome Statute. It may be suggested that the further action, in this regard, may include the initiation of the investigation, on the part of the ICC, or the prosecution of individuals suspected on being responsible for the commission of heinous international crimes. This, of necessity, implies a juridical dimension on the international plane, to the establishment of the requirement of gravity. Recourse would then be made to the existing, and developing, jurisprudence of the court.

Arguably, however, it is my position that the concerned national criminal jurisdiction is not barred from any similar further action owing to the insufficiency of gravity, in pursuit of justice. This has important ramifications for the question of impunity gap, and the policy of positive complementarity [Positive complementarity has been defined as: [A]ll activities/ actions whereby national jurisdictions are strengthened and enabled to conduct genuine national investigations and trials of crimes included in the Rome Statute, without involving the Court in capacity building, financial support and technical assistance.] in general, as will be seen as this discussion progresses. Intrinsic in this discourse, therefore, is what exactly are the parameters of the requirement of sufficient gravity under the Rome Statute. This a problematic area, and we concern ourselves with this question in this discussion.

Consequently, the begging question is: what was the intention of the drafters when they sought to formulate the provisions of the Rome Statute on sufficiency of gravity? According to Benvenuti, the rationale for the principle of sufficient gravity can be seen in the drafter’s intention to provide for control over flooding the court with minor offenses while the high-profile offenders go about free and unpunished. [See Benvenuti “Complementarity” 21.] In the view of El Zeidy, this reasoning appears to be grounded on the declaration by member states in the Preamble to the Rome Statute wherein they undertake to fight impunity for the “most serious crimes of concern to the international community as a whole.” [See generally El Zeidy (2008) 57 International & Comparative Law Quarterly 403-15; El Zeidy (2008) 19 Criminal Law Forum 35-57.] But this statement on its own does not provide us with sufficient enlightenment on why the focus is on the most serious crimes, and not other crimes. All international crimes, notwithstanding the magnitude, are heinous crimes and their violation should naturally attract punishment even by the ICC.

In my view, however, the rationale for sufficient gravity requirement may have been influenced by the wisdom to avert the possibility that the ICC would be overwhelmed, and that a sieving means or yardstick, as it were, had to be designed to control the possible flood of cases into the ICC. Why do I say this? Assuming, for analysis purposes, the resources were not a constraint factor for the ICC, it would be argued that the ICC would be more willing to admit most Rome Stature cases submitted to it, in a bid to combat impunity globally. However, in light of the reality of the inevitable resource constraint, the yardstick of the sufficiency of gravity remains a relevant consideration.

It has been argued that the issue of sufficient gravity may not, strictly speaking, be part of the admissibility rules—or of complementarity for that matter. Moreover, the question of sufficient gravity is subjective. The Rome Statute contains no explanation of what exactly amounts, by objective standards, to sufficient gravity or its application. [See generally these works by El Zeidy: El Zeidy (2002) 23 Michigan Journal of International Law 869-975; El Zeidy (2005) 5 International & Comparative Law Quarterly 83-119.]

El Zeidy observes that the question that only cases of a certain degree of gravity should be dealt with before the court has received little attention in the literature of the law in this realm. [El Zeidy MM (2006) 19 Leiden Journal of International Law 741-51; El Zeidy (ed.) The International Criminal Court and Complementarity 393-420;] He discusses the notion of introducing an element of gravity to serve as part of the system of admissibility of complaints before the court. [El Zeidy MM “The legitimacy of withdrawing state party referrals” 55-78.]

The court may, in determining the sufficiency of gravity, take into account the degree and magnitude of the offence and the seriousness of the consequences of the prohibited act. It is important to point out that the degree of participation in the offence is also relevant in influencing the determination of the sufficiency of gravity. [Ibid.] This demonstrates the degree of latitude the court has in determining the the sufficiency of gravity in a given case presented before it.

As indicated above, the determination relating to gravity, is not confined only to the juridical aspects of the court’s proceedings. Invariably, the Office of the Prosecutor of the ICC (OTP) becomes the starting point, where the question of gravity is addressed. Given this onerous responsibility, the OTP devised a framework on how to process issues concerning gravity threshold. In the next section, we will look at the OTP’s definition and regulations designed to deal with the gravity question.

III. The OTP’s Definition of Gravity

The OTP has provided a very comprehensive, and in my view, quite coherent definition of gravity, which are compartmentalized into four factors: (a) the scale of the crimes; (b) their nature; (c) the manner of their commission; and (d) their impact. [See Office of the Prosecutor, Regulations of the Office of the Prosecutor, Doc. No. ICC-BD/05-01-09 at Reg. 29(2); see also, Office of the Prosecutor, Policy Paper on Preliminary Examinations, Nov 2013 at ¶¶ 59-66.]

The OTP’s Policy Paper on Preliminary Examinations provides thus:

62. The scale of crimes may be assessed in light of, inter alia, the number of direct and indirect victims, the extent of the damage caused by the crimes, in particular the bodily or psychological harm caused to the victims and their families, or their geographical or temporal spread (high intensity of the crimes over a brief period or low intensity of the crimes over a brief period or low intensity of crimes over an extended period).
63. The nature of the crimes refers to the specific elements of each offence such as killings, rapes and other crimes involving sexual or gender violence and crimes committed against children, persecution, or the imposition of conditions of life on a group calculated to bring about its destruction.
64. The impact of crimes may be assessed in light of, inter alia, the sufferings endured by the victims and their increased vulnerability; the terror subsequently instilled; or the social, economic and environmental damage inflicted on the affected communities. [See the OTP Policy Paper on Preliminary Examinations, ¶¶ 62-65, ibid.]

According to the OTP, the elements outlined above, form the bases for the assessment or determination of the requisite sufficiency of gravity. They provide guidelines on how the OTP processes questions of gravity threshold, and how it approaches the issue before the other organs of the court. For instance, The guidelines also highlight how the OTP deals with the presentation of the gravity question before the Pre-Trial Chamber. The guidelines are also instrumental in highlighting the participation of the OTP and other parties, when the matter proceeds to sentencing before any other chamber of the court. It is submitted that the gravity considerations remain live throughout the entire legal journey of a matter that has attracted the attention of the ICC.

It may be argued that, given that the question of gravity is a subjective rather than objective, the criteria developed by the OTP are not necessarily conclusive, in establishing the sufficiency or otherwise of gravity in a given legal scenario. This is partly because in the realm of international criminal justice there are multiple stakeholders and players whose respective interests and views on the requirements for gravity threshold may vary diametrically. In my view, this therefore would have the effect of significantly influencing the perspective of such interest groups or stakeholders with respect to how they should respectively approach gravity.

The jurisprudence of the ICC on various matters, including gravity, is still evolving, in the context of the teething institutional framework, and therefore, in my view, not fully established as to determine consistent criteria for gravity. Therefore, the subjective nature of the concept remains a problematic legal issue in the Rome Statute. It is opined that with the development of more jurisprudence of the court in the realm of gravity threshold, there will slowly emerge a more concrete and objective standard for determining the sufficiency of gravity—and thereby make a gradual departure from the more problematic subjective approach. It is submitted that, in the ultimate analysis, the court has a juridical responsibility to developed consistent and coherent jurisprudence on the question of gravity, which may in turn influence future development of the Rome Statue.

IV. The Impunity Gap and Positive Complementarity

The impunity gap arises where an international forum prosecutes only those individuals most responsible for international crimes, thereby allowing lesser-ranking offenders a degree of impunity. [See generally Report of the Bureau on Stocktaking of the Principle of Complementarity: Bridging the Impunity Gap ICC-ASP/8/51 Resumed Eighth Session 18 March 2010.]

Owing largely to its capacity constraints, the ICC has tended to deal only with situations and cases involving high-ranking suspected offenders. Consequently, many lesser-ranking offenders are not prosecuted by the ICC but are left for the domestic criminal jurisdiction to deal with. [See, for example, The Prosecutor v Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen ICC-02/04-01/05-377 (March 10, 2009) available online.] Coupled with the even more severe constraints inherent in most national jurisdictions, notably in the developing world, the result is that the “impunity gap” tends to remain largely unaddressed.

It is submitted that the strategy of the ICC focussing on those who bear the greatest responsibility for crimes falling within the jurisdiction of the ICC, will continue to result in an impunity gap unless national criminal authorities, the international community, and the ICC work in concert to ensure that all effective means and measures are invoked to bringing other perpetrators to justice, regardless of the magnitude of the alleged crime. [Ibid.]

It has been argued that positive complementarity can help close the impunity gap by encouraging domestic criminal prosecutions of international crimes, including those that may not meet the gravity threshold for prosecution by the ICC. [See generally Burke-White (2008) 1 Harvard International Law Journal 49 available online.]

It is thus underscored that the extent to which the ICC and the national criminal jurisdiction, are faced with limitations with regard to dealing with the impunity gap, and considers this problematic impediment in the light of the concept of gravity threshold.

In the ultimate analysis, it is my considered view that the requirement of sufficient gravity is arguably a factor that could facilitate and even widen the impunity gap. An “impunity gap” because it appears to allow for minor offenders to evade the jurisdiction of the ICC and walk away from their crimes scot-free, solely on the basis of the legal technicality of insufficient gravity not meeting the threshold. [See Preamble to the Rome Statute ¶ 4 which expresses the desire of the states to counter impunity for the most serious crimes of concern to the international community as a whole. ]

The discourse further underscores the significance of the concept of positive complementarity in addressing the adverse effects of the impunity gap. Positive complementarity, though currently unsettled as a policy, could provide useful legal apparatus to accelerate the pace of restoration of the rule of law in most communities traumatised by the commission of heinous international crimes. [See generally Bjork & Goebertus “Complementarity in action” (2014) 14 Yale Human Rights and Development Journal 205-29.]

It is my argument that the impetus to consider the requirement of sufficient gravity has been accentuated by the renewed interest of the OTP in vigorously pursuing its policy on positive complementarity, notably, recently with regard to its cooperation agreement with the Republic of Colombia [See Cooperation Agreement between the Office of the Prosecutor of the International Criminal Court and the Government of Colombia, signed in the city of Bogota, D.C., on 28 October 2021 202111028-OTP-COL-Cooperation-Agreement available online. Also available online]. As will be demonstrated in this discourse, this is because, in general, the ICC will seek to focus on a certain level of intervention, rather than accommodate all cases regardless of the sufficiency of the gravity entailed.

It is thus critical to consider what is entailed in the requirement of sufficient gravity under the Rome Statute, and how that requirement has influenced the determination by the OTP to pursue the policy of positive complementarity.

It is important to note, however that the requirement of “sufficient gravity” is designed within the framework of the Rome Statute to apply to all cases before the ICC, irrespective of whether the national jurisdiction has already acted upon them or not.

From the preceding analysis, it may be concluded that the complementarity principle as provided for in the Rome Statute plays a crucial role as a legal instrument that strikes a critical balance between the desire to ensure an effective international criminal justice system to prevent impunity, on the one hand, and the protection of state sovereignty, on the other hand. And to this extent, in my view, positive complementarity is an inevitable critical product of the ultimate determination of the requirement of gravity sufficiency.

I have underscored the significance of the requirement of sufficiency of gravity as one of the tenets of the principle of complementarity. In light of the preceding analysis, it is submitted that there is no plausible justification in any reasoning that the court has become complicit in the refusal of some states to confront suspects of the most serious violators of international human rights and humanitarian law on the domestic level. Such an allegation has not been effectively established. [See generally, Pisani System of the International Criminal Court 4, available online.] This accusation, in my view is entirely debatable, It is necessary to provide the above analysis of sufficiency of gravity, as an aspect of the principle of complementarity so as to establish a basis upon which to the concept of positive complementarity evolved.

In light of the clear impediment in investigating and prosecuting all cases irrespective of sufficiency of gravity, the ICC, therefore, developed policies to encourage domestic criminal jurisdiction, and provide support where possible, to investigate and prosecute the lesser offenders, as it were, so they may not escape justice under domestic jurisdiction. [See Benzing M. “The complementarity regime of the International Criminal Court: International criminal justice between state sovereignty and the fight against impunity”available online.] As already mentioned in he preceding discussion, this attitude is inspired by the fact that the ICC has limited resources and is not in a position to try all offenders effectively at the same time. [Perrin (2006) 18 Sri Lanka Journal of International Law 301.]

In the result, it can be seen that the negative effect of the requirement of the “gravity threshold” in the Rome Statute which, arguably, has the effect of generating the impunity gap, is addressed through the policy of positive complementarity, by encouraging the states effectively to pursue and commit to justice the so-called “lesser-ranking offenders”. [The gravity threshold is provided for in art 17(1)(d) of the Rome Statute and states that a case is inadmissible where it “is not of sufficient gravity to justify further action by the Court.” On November 6, 2014, the ICC prosecutor announced its decision not to investigate the “Flotilla Incident” on the ground that the situation did not meet the gravity threshold for admissibility. See generally Situation on Registered Vessels of Comoros, Greece and Cambodia article 53(1) Report 3 November 6, 2014 available online.]

It is instructive to note that neither the Rome Statute nor the history of the drafting of the treaty, provides any useful guidance on what situations or cases meet the gravity threshold. [De Guzman (2015) 19 American Society of Law 19 available online.] This, in my view, renders the admissibility threshold requirement of sufficiency of gravity, a subjective standard.

Moreover, it has been argued that proactive or positive complementarity can help seal the impunity gap by encouraging domestic prosecutions of international crimes, including those that may not meet the gravity threshold for prosecution by the ICC. [See generally Burke-White (2008) 1 Harvard International Law Journal 49 available online.]

In the ultimate analysis, it is my view that the need to address the question of the impunity gap, coupled with the gravity threshold requirements, has, in turn, influenced the evolution of the policy of positive complementarity.

Bibliography

Benvenuti P. “Complementarity”

Benvenuti P. “Complementarity of the International Criminal Court to national criminal jurisdictions” in Lattanzi F. & Schabas WA (eds.) Essays on the Rome Statute of the International Criminal Court vol 1 (I1 Sirente Fagnano Alto 1999) 21-50

Burke-White (2008) 49 Harvard International Law Journal

Burke-White W. “Proactive complementarity: The International Criminal Court and national courts in the Rome system of international justice” (2008) 49 Harvard International Law Journal 53-108 available online

De Guzman MM “What is the gravity threshold for an ICC investigation? Lessons from the Pre-Trial Chamber decision in the Comoros Situation” (2015) American Society of Law 19 available online

El Zeidy MM “The gravity threshold under the statute of the International Criminal Court” (2008) 19 Criminal Law Forum 35-57

El Zeidy “The legitimacy of withdrawing state party referrals”

El Zeidy MM “The legitimacy of withdrawing state party referrals & ad hoc declarations under the Statute of the International Criminal Court” in Stahn C. & Sluiter G. (eds.) The Emerging Practice of the International Criminal Court (Koninklijke Brill Leiden 2009) 55-78

El Zeidy (2002) 23 Michigan Journal of International Law

El Zeidy MM “The principle of complementarity: A new machinery to implement international criminal law” (2002) 23 Michigan Journal of International Law 869-70

El Zeidy (2008) 57 International & Comparative Law Quarterly

El Zeidy MM “From primacy to complementarity and backwards: (Re)visiting Rule 11bis of the ad hoc Tribunals” (2008) 57 International & Comparative Law Quarterly 403-15

El Zeidy (2006) 19 Leiden Journal of International Law

El Zeidy MM “Some remarks on the question of admissibility of a case during arrest warrant proceedings before the International Criminal Court” (2006) 19 Leiden Journal of International Law 741-51

El Zeidy (2008) 19 Criminal Law Forum

El Zeidy MM “The gravity threshold under the statute of the International Criminal Court” (2008) 19 Criminal Law Forum 35-57

El Zeidy (2002) 23 Michigan Journal of International Law

El Zeidy MM “The principle of complementarity: A new machinery to implement international criminal law” (2002) 23 Michigan Journal of International Law 869-899

El Zeidy (2005) 5 International Criminal Law Review

El Zeidy MM “The Ugandan government triggers the first test of complementarity principle: An assessment of the first state’s party referral to the ICC” (2005) 5 International Criminal Law Review 83-119

Perrin (2006) 18 Sri Lanka Journal of International Law 301.

Schabas WA “Prosecutorial discretion and gravity” in Stahn C. & Sluiter G. (eds.) The Emerging Practice of the International Criminal Court (Koninklijke Brill Leiden 2009) 229-46

Stahn C. & El Zeidy MM (eds.) The International Criminal Court and Complementarity: From Theory to Practice (Cambridge University Press Cambridge 2011) 21-32

Stegmiller I. “The gravity threshold under the ICC statute: Gravity back and forth in Lubanga and Ntaganda” (2009) 9 International Criminal Law Review 547-65

II. Current Uses of Gravity Under the ICC

To answer what the definition of gravity under the Rome Statute should be, it is first necessary to examine how it is currently being interpreted. The Court utilizes a three-tiered process for analyzing communications submitted regarding potential crimes within the jurisdiction of the Court. The first phase “is an initial review to identify those communications that manifestly do not provide any basis for further action.”6 Here, the Court looks at the facts presented to determine if there is enough evidence to conclude that the alleged crimes could fall within the Court’s jurisdiction. The second phase involves an examination of the “seriousness” of those crimes that pass the first phase of inquiry.7 During this second phase is when gravity is initially considered during case selection; it is usually referred to in this context as the “gravity threshold”. For example, in the case presented to the ICC by Iraq, the Court found that it met the jurisdictional requirements, however, it still concluded that the situation in Iraq “did not appear to meet the required threshold of the Statute” because there were only four to twelve victims of willful killing and “a limited number of victims of inhuman treatment,” which was of a different order than the number of victims in other situations being presented to the Court.8 The final stage of analysis involves looking at all admissible situations before the Court—those that fall under the Court’s jurisdiction and meet the gravity threshold—and allowing the Prosecutor to decline to initiate an investigation where after “taking into account the gravity of the crime and the interests of the victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.”9 It is during this final level of analysis where the Prosecutor must compare all the situations before him that meet the Court’s requirements and decide which cases to pursue and which cases to decline to investigate. This act, referred to as Prosecutorial Discretion, is where the gravity inquiry will be examined by this comment.

While the Court has offered some (albeit vague) guidance on the gravity threshold,10 there is currently no discussion of this gravity analysis by the Court. However, it is this analysis that arguably most necessitates a definition. For States who pass the first two stages of review, it is dissatisfying to be denied without clear reasoning as to why their situation was not as pursuable as another. A closer look at the considerations mentioned by the Prosecutor when analyzing the gravity threshold may help provide some insight into the factors taken into account during the last stage. In previous cases, the Prosecutor or Court has mentioned all of the following as gravity threshold considerations:

1. number of victims,

2. number of persons killed,

3. severity of crimes,

4. systematicity of crimes,

5. nature of crimes,

6. impact of crimes,

7. role/position of the perpetrator, and

8. intent of the perpetrator.11

However, an empirical examination of the cases that the Court has taken on shows that, of these considerations, quantitative values tend to play a more important role in determining gravity.12 Factors such as the impact of the crime tend to play a lesser role, and other potentially relevant considerations, such as public policy concerns or deterrence, are not mentioned at all. While the Prosecutor has at some points seemed to take these concerns into account, it is not done with the transparency necessary to assuage critics.

Therefore, this current system of analyzing gravity, or lack thereof, needs to be revisited. First, it is problematic because the two different gravity analyses—one as a gravity threshold requirement under the Rome Statute and the other as Prosecutorial discretion—are often conflated by the Prosecutor, making it unclear to the public what stage the analysis is actually taking place in. For example, in his explanation on why he was pursuing an investigation of crimes committed by the Lord’s Resistance Army (LRA) in Uganda rather than the government forces, the Prosecutor stated the crimes by the LRA “were much more numerous and of much higher gravity than alleged crimes committed by” the national army.13 It seems that the Prosecutor was making this choice based on an exercise of prosecutorial discretion, however, without proper distinguishment the Court’s perception could suffer harms. Public perception of the Court is largely linked with the Court’s legitimacy and transparency, and it will be necessary going forward to have a clear definition of how crimes are being analyzed before the Court to promote greater transparency. Moreover, scholars argue that the public’s trust in the Court would increase by clearly communicating that relative gravity is indeed one factor that the Prosecutor considers when making the ultimate decision to initiate an investigation into a situation.14 The Uganda situation and the DRC situation highlighted the need for this clarity, when one commentator suspected that the true reason the Court chose to prosecute a DRC subject was because he was facing imminent release if the Court did not act quickly and asserted that this was a deviation from OTP policy.15 Without greater transparency with respect to the Prosecutorial exercise of discretion, situations like this will continue to cast doubt on the legitimacy of the Court and hurt its efforts.

III. How Flexible Should the Definition of Gravity Be

Even after conceding that the definition of gravity requires reworking, scholars diverge when debating exactly how the definition of gravity should be reworked. Some argue the Court should maintain a strict narrow aperture, only prosecuting large-scale crimes in order to prioritize its limited resources. This would result in fewer, but deeper prosecutions. Others argue the Court should take on a wide aperture, allowing all cases that meet the jurisdictional requirements to be heard by the Court in order to prosecute as many cases as possible. When discussing what informs his prosecutorial discretion, the Prosecutor stated that the OTP is guided by the standard of gravity mandated by the Rome Statute.16 However, as explored above, there is no guidance in the Rome Statute regarding prosecutorial discretion. Contrary to other opinions, however, the solution is not to provide them. Given that the Rome Statute is silent on this particular matter, it can be assumed that the drafters therefore intended for prosecutorial discretion to be interpreted as widely as possible within the bounds of the rest of the Rome Statute. Accordingly, the best approach is for the Prosecutor to maintain broad discretion over the types of cases to choose (while still retaining a small case load) and to be open about the breadth of discretion and the additional factors that inform a decision to prosecute or not. This would maximize the Prosecutor’s ability to serve the varying interests of the ICC while still allowing for thorough investigation of the cases that are chosen for prosecution. The following case studies offer examples of why the breadth should be so large by highlighting a few of the additional factors that could appropriately affect the case selection process.

A. Case Studies of Competing Interests

1. Legitimacy

One important consideration the Prosecutor should take into account during case selection is how any given investigation could affect the legitimacy of the Court. If the international community loses faith in the ability of the ICC to do its job, the ability to effectively prosecute any future crimes will be hampered. Yet even within this goal, there exist multiple levels that warrant varying approaches to gravity. For example, Margaret M. deGuzman discusses the concept of “sociological legitimacy”, which refers to the “perception of relevant audiences that an institution or decision is justified and deserves support independent of any sanction or reward associated with such support.”17 The ICC’s sociological legitimacy is strongly affected by the Prosecutor’s discretionary decisions on case selection given that it is such a recently created institution in the context of world history.18 deGuzman argues that in choosing to pursue a particular situation or case, the Prosecutor asserts a vision of the Court’s role in the international legal order, which will form the basis of public opinion of the Court.19 With this in mind, one approach in selecting between admissible cases is to prioritize cases whose content can advance the perception of legitimacy. As one example, studies have shown that cases involving a large numbers of victims are seen as more legitimate.20 The prosecution of the most senior leaders responsible for the crime, rather than intermediate and lower rank accused, also is a factor that tends towards legitimacy. Particularly since the ICC has been criticized in the past of improperly asserting jurisdiction against State sovereignty interests,21 transferring cases with lesser leaders back to national authorities could help to increase its legitimacy on these matters. Lastly, the ongoing Africa debate involving the ICC could lend it towards taking on relatively smaller-scale cases in larger, Western countries (for example, its current case against the United States) to disprove theories of bias and reassert its legitimacy as a neutral arbiter. Given how integral the ICC’s legitimacy is towards its success as an institution, in each of these examples, it would be entirely appropriate for the Prosecutor to consider the impact on legitimacy when choosing between cases, supporting the contention of broad discretion.

2. Deterrence

Another important goal of the ICC is to provide a deterrent effect against the commission of these heinous crimes in the first place. The question of how to effectively deter future crimes raises a different set of considerations. Here, the quantitative number of victims may not be as important as the impact of the crimes. For example, the September 11th terrorist attacks resulted in just under three thousand deaths, however, the impact of the attacks on the United States and the rest of the world were far-reaching and long-lasting. Should this case have ended up before the ICC, it would have been reasonable to accept the investigation, despite the relatively fewer number of causalities compared to other situations, in order to deter such an attack from happening again, whether it be in the United States or elsewhere. Like legitimacy, deterrence may also lead to the conclusion that only senior leaders should be prosecuted. Since the most senior leaders are the ones who held the power to effectuate the crimes, they are also the ones who, in the future, likely have the power to prevent them from happening again.22 Additionally, if only quantitative measures are considered, the ICC would lose the ability to step in and deter further violence in a situation where victim numbers are currently low but bound to get worse without intervention. Once again though, the important notion is that the Prosecutor should retain the ability to make this decision for himself, based on all the circumstances of the individual case.

3. Justice

Perhaps the trickiest goal to meet, the pursuit of justice should also play a role in the Prosecutor’s case selection discretion. Globally the definition of justice varies not only by State, but by distinct communities and individuals. Accordingly, only with a broad discretion will the Prosecutor be able to adequately analyze the full context surrounding a situation to determine the best course of action. Under considerations of justice, the prosecution of only the most senior leaders may not always be the best option. Human Rights Watch noted that:

In some contexts, pursuing those officials further down in the chain of command […] could have a significant impact for victims on the ground and/or may be necessary for the implementation of an effective prosecutorial strategy in a particular country situation.23

Furthermore as Cécile Aptel aptly points out, in many cases, the denial of an investigation by the ICC oftentimes is the de facto denial of remedies and reparations to the victims of serious crimes.24 While the rest of the considerations mentioned above focus largely on the ICC, or perpetrators of the crime, this takes a victim-centered approach—one which is not explored with enough frequency or depth as is warranted. Within victim classes, local populations often exhibit divergent views on what is desired by the Court. For example, in Rwanda there were calls for the ICTR to prosecute crimes committed by the government forces, even though they were found to play a lesser role in the crimes and ultimately halted the genocide.25 Without proper consideration of victims’ needs, the Court may end up pursuing a case against unsatisfactory perpetrators, or wasting resources prosecuting a crime that victims would prefer be dealt with through different means via local systems.

4. Other Considerations

In addition to the three most commonly implicated goals listed above, many other legitimate concerns (such as the limited resources of the Court) could be taken into account through prosecutorial discretion because the exercise of discretionary power has “fundamental ethical, political, and historical consequences” beyond just the ICC.26 Several scholars have pointed out some of these additional factors that the Prosecutor should take into account. Kenneth Rodman proposes that, in some cases, the Prosecutor should actually hold back from criminal proceedings if the parties believe that alternatives are necessary to transition out of repressive rule or armed conflict.27 Melanie O’Brien also notes the importance of taking into account the rippling consequences of prosecutorial discretion. She notes that the ICTY’s prosecutor was chastised for pursuing a case centered on a low-ranking perpetrator for the rape of a single victim. However, that case went on to create a significant precedent in international criminal law because it was the “first international war crimes trial in history to focus almost exclusively on the actus reus of rape”28 which further developed the crime of rape within the context of international law.29 Matthew Brubacher argues that international public policy concerns also play a role in ICC decision making, even though the Court attempts to avoid the infiltration of politics. Assuming that the perpetrator’s imminent release was in fact part of the motivation for the ICC’s investigation, the DRC case mentioned above illustrates how public policy can play a relevant role in decision-making. All of these examples once again show the complexity of context surrounding any one case before the Court and exemplifies the need for prosecutorial discretion in determining which case to move forward with an investigation.

IV. Recommendations

As reiterated throughout this comment, allowing for a variable aperture with broad discretion is the best approach to ensure proper consideration of situations before the ICC, each of which present differing goals that require different gravity considerations. To summarize the points above, the following factors are specifically recommended:

1. the Prosecutor must look beyond simply the scale and systematicity of the crimes,

2. the Prosecutor must avoid instituting strict guidelines (or procedural correctness) in order to take into consideration the context surrounding each case,

3. the Prosecutor must take into account qualitative factors (such as the impact of a crime or how the case could impact the Court’s legitimacy),

4. the Prosecutor must examine the victims’ vulnerability and their views on justice, and

5. the Prosecutor must openly communicate in each instance of acceptance or denial of the case which of these gravity considerations he took into account in making his decision.

V. Conclusion

Because the Rome Statute does not explicitly lay out guidelines for prosecutorial discretion, it should be assumed that the framer’s silence was intentional to leave open a broad interpretation of the matter. Accordingly, given the competing interests that the ICC seeks to serve, the best approach for the Prosecutor is to have broad discretion that allows for a variety of considerations beyond quantitative data prioritized by the gravity threshold requirement. This approach best allows for holistic consideration of all the circumstances surrounding a case so the Prosecutor can make an informed decision on how to best utilize the Court’s limited resources at a given point in time.

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

1. 1.

   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], Art. 1, available online. ↩

2. 2.

   Id. Article 5. ↩

3. 3.

   Id. Article 17, Article 53(1)(c). ↩

4. 4.

   Luis Moreno-Ocampo, ICC Prosecutor, Integrating the Work of the ICC into Local Justice Initiatives, 21 Am. U. Int’l L. Rev. 497, 498 (Jan. 1, 2006), available online

   (discussing the important, yet challenging character, of gravity in the selection of cases to be heard before the ICC). ↩

5. 5.

   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, 536 (Jun. 28, 2012), paywall, archived, doi. ↩

6. 6.

   Susana SáCouto & Katherine A. Cleary, The Gravity Threshold of the International Criminal Court, 23 Am. U. Int’l L. Rev. 807, 827 (2007), available online. ↩

7. 7.

   Id. ↩

8. 8.

   Id. at 828. ↩

9. 9.

   Id. at 829. ↩

10. 10.

    See 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” (AC, Jul. 13, 2006), available online. ↩

11. 11.

    SáCouto & Cleary, supra note 6, at 824. ↩

12. 12.

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

13. 13.

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

14. 14.

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

15. 15.

    SáCouto & Cleary, supra note 6, at 852. ↩

16. 16.

    Office of the Prosecutor, ICC, Report on the Activities Performed During the First Three Years 6 (Sep. 12, 2006), available online. ↩

17. 17.

    deGuzman, supra note 14, at 1441. ↩

18. 18.

    Id. ↩

19. 19.

    Id. at 1442. ↩

20. 20.

    Id. at 1447. ↩

21. 21.

    Michael P. Scharf, The ICC’s Jurisdiction over the Nationals of Non-Party States: A Critique of the U.S. Position, 64 Law & Contemp. Probs. 67, 69 (2001), available online. ↩

22. 22.

    SáCouto & Cleary, supra note 6, at 848. ↩

23. 23.

    Office of the Prosecutor, ICC, Second Public Hearing: NGOs and Other Experts 7 (Sep. 26, 2006), available online. ↩

24. 24.

    Cécile Aptel, Prosecutorial Discretion at the ICC and Victims’ Right to Remedy: Narrowing the Impunity Gap, 10 J. Int’l Crim. Just. 1357, 1368 (Dec. 2012), paywall, doi. ↩

25. 25.

    deGuzman, supra note 14, at 1447. ↩

26. 26.

    Aptel, supra note 24, at 1364. ↩

27. 27.

    See generally, 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. ↩

28. 28.

    O’Brien, supra note 5, at 536. ↩

29. 29.

    Id. at 537. ↩

The scale of the crimes has generally been the strongest guiding force in the OTP’s situational gravity determinations.11 In deciding not to investigate the situation in Iraq, the OTP stated that a “key consideration is the number of victims of particularly serious crimes.”12 The OTP relied heavily on the relatively small scale of victimization in Iraq to justify its decision to forego an investigation.13 In its policy paper discussing its case selection methodology, the OTP specified further considerations that are included in the analysis of a situation’s scale of victimization:

The scale of the crimes may be assessed in light of, inter alia, the number of direct and indirect victims, the extent of the damage caused by the crimes, in particular the bodily or psychological harm caused to the victims and their families, and their geographical or temporal spread (high intensity of the crimes over a brief period or low intensity of crimes over an extended period).14

In addressing the question as to what methodology should be employed by the OTP in determining whether a situation is sufficiently grave to warrant investigation, it is important to consider the practical effect of the OTP’s current formulation. Is the OTP’s current conception of gravity successful in identifying the gravest crimes? If not, what changes need to be made to the OTP’s case selection policies to best ensure that it is effectively identifying the gravest crimes?

As a general matter, the OTP’s current formulation of the gravity threshold requirement has been successful in identifying which situations are the gravest. A comparison of the OTP’s determinations of situational gravity to widely accepted databases on the severity of a country’s situation drawn from academic and governmental reports indicates that the OTP’s current formulation, which seems to focus on scale, has been successful in identifying the gravest situations around the world that fall within its jurisdiction.15 Empirical data indicates that, of the ten most severe situations involving international crimes that have fallen within the ICC’s jurisdiction, based on an empirical formulation using data independent of the ICC, the OTP is investigating four and has opened preliminary examinations in three others.16 Of the three countries in that list not being examined by the OTP, two of them (Burundi and Liberia) experienced a substantial portion of their violence before the Rome Statute came into effect, meaning that the ICC lacks temporal jurisdiction over much of the violent conduct committed in those situations.17 The fact that this empirical formula generally aligns with the OTP’s decisions to open investigations into particular situations strongly indicates that the OTP’s current formulation of the gravity standard has been generally effective in identifying the gravest situations. Moreover, the OTP’s apparent emphasis on scale generally reflects public opinion that as the number of victims increase, the situational gravity does as well.18 However, there are nonetheless a number of changes and tweaks that the OTP could and should make to its current gravity considerations both in order to increase the Court’s legitimacy and to more effectively rectify the impunity gap that has historically existed in international law.

In order to evaluate the OTP’s use of the gravity threshold requirement, it is important to understand and appreciate the limited nature of the office’s (and the Court’s) resources. The gravity requirement is an important screening process in large part because it allows the OTP the discretion necessary to take its limited resources into consideration. The OTP’s resource limitations are especially important to consider given that the situations and crimes that it investigates are generally graver than those prosecuted in a domestic setting and are therefore more difficult and require more substantial resources.19 However, despite the apparent need to invest more resources to carry out an effective and thorough investigation, the ICC receives significantly less funding than many domestic prosecutorial agencies investigating mass atrocities.20 In fact, a comparison of similar types of investigations in a domestic setting as opposed to at the ICC reveals that comparable domestic investigatory efforts generally received at least ten times more resources than the OTP is afforded for the same investigations, and sometimes the gap can reach a factor over one hundred.21 Such resource limitations significantly reduces the maximum number of situations that the ICC can effectively investigate, therefore requiring the OTP to make determinations as to which situations are most worthy of resource investment, even if all of the potential situations are sufficiently grave to be admissible to the ICC. Because of this need for practical considerations beyond the normative judgments that OTP officials may have regarding a situation has led (and will continue to lead) to criticism as to how it selects its cases. However, as discussed above, independent measures indicate that the OTP’s current gravity formulation is not deserving of such criticism.

III. Recommendations

Notwithstanding the OTP’s justified general focus on situations involving the largest scale of victimization, there are factors that the OTP already considers that should be afforded greater weight in the analysis. Stronger consideration of the following factors is justified based on the Court’s goals of deterrence and institutional legitimacy given its limited resources.

One factor that the OTP should more seriously consider when analyzing the gravity of a situation is whether the crimes were committed by States. Both prevention of future crimes and the legitimacy of the Court would be enhanced if the Court were to alter its gravity calculus in situations involving crimes committed by a State. Historically, the ICC has received criticism for failing to prosecute perpetrators that were acting as a part of the State while nonetheless choosing to prosecute rebel perpetrators in the same situation, even in some cases involving greater atrocities committed by government officials.22 While the OTP insists that it will “objectively apply the same criteria for all [groups,]” its track record in choosing whom to prosecute, as in situations such as Uganda, does not reflect this even-handed approach.23 The appearance that the OTP is reluctant to initiate prosecutions against government officials, while lacking the same reluctance with rebel groups, will undoubtedly undermine the legitimacy of the Court, especially in cases of self-referral by the government of the State in question.

Beyond the effect that this practice has on the Court’s legitimacy, it also undermines the Court’s goal of deterring future international crimes from taking place. While it is not always the case, States can often prosecute crimes committed against rebel perpetrators once they gain custody of them.24 However, States can rarely prosecute its own government and military personnel.25 While the OTP’s decision not to prosecute many State perpetrators is likely rooted in practical considerations (e.g., the ability to gain custody over the defendant, the cooperation of the State in the investigation), it would be well served to afford greater weight to a perpetrator’s status as a government official, given that such status is almost always met with domestic impunity. It is also worth noting that many crimes that seem particularly grave, especially in the context of the interests of the international community as a whole—such as systematic torture, election-related violence, and enforced disappearances—are almost always committed by States.26 Such an approach is supported by public opinion on the determination of gravity, as “abuse of power or official capacity,” while more limited than the State perpetrator consideration being offered here, is a moderate indicator of people’s view of gravity.27

Another consideration that should be more strongly considered in the OTP’s analysis of situational gravity is the vulnerability of the group being victimized. The OTP included this factor in its Policy Paper on Case Selection and Prioritization, listing it under considerations of “particular cruelty.” While it is not entirely clear how the OTP employs this factor—or if it employs it at all in practice—the OTP should place greater weight on the vulnerability of a victimized group. While doing so could improve the legitimacy of the Court, its strongest effect would be to enhance the Court’s deterrent effect on future crimes. When a group is more vulnerable, not only are they more likely to be victimized, but they are more likely to suffer particular harm as the result of their victimization.28 The biggest impact that a stronger consideration of a victimized group’s vulnerability will have on the OTP is to improve its specific deterrent effect. That is to say, investigations and prosecutions involving crimes committed against a vulnerable group are an important tool in preventing the same victimization from occurring to the same group in the same region. This is a particularly important outcome given that vulnerable groups are, by definition, to some extent incapable of adequately protecting themselves from such victimization. This vulnerability opens the door for perpetrators to renew their victimization of such a group if they are not faced with the fear of prosecution. Stronger considerations of the vulnerability of victimized groups would also, to a lesser extent, enhance the Court’s general deterrent effect by better protecting groups that are least capable of preventing or mitigating the effects of international crimes committed against them.

Beyond these factors that should be more strongly emphasized in the OTP’s determination of situational gravity, the OTP is also faced with practical considerations when selecting which situations to pursue. The main practical consideration that saddles the OTP is, as mentioned earlier, its resource limitations. A related consideration in the OTP’s gravity calculus is the number of cases to pursue within a given situation. The OTP has expressly engaged in a policy of limiting the number of individuals that it seeks to prosecute in a given situation to those that are most responsible. The OTP’s lack of sufficient resources leads to its inability to complete a thorough and holistic investigation of a situation.29 The average ICC investigation “will only have a total of thirteen investigators and will only take about 170 witness statements.”30 Such resource limitations will lead to incomplete or deficient investigations, especially given the high degree of gravity of the international crimes that are investigated by the ICC, which generally involve more victims of all types, a greater number of perpetrator groups, more crime sites, and crimes that take place over a much longer period of time.31 In response to this predicament, the OTP should aim to consolidate its resources into fewer investigations in order to conduct the investigations thoroughly and properly. Not only will such reallocation of resources lead to more effective investigation and prosecution, but it will also prove to be a more efficient use of the OTP’s resources. Presumably, the marginal cost of additional investigatory efforts decrease as the OTP invests more resources into a situation and has begun to build up more substantial infrastructure and improve its relationships with domestic institutions. In other words, it would cost less for the OTP to carry out one sufficiently thorough investigation than it would for it to complete two deficient ones. More thorough prosecutions would also improve the Court’s deterrent effect, which is most strongly correlated with a potential perpetrator’s perceived likelihood of being apprehended.32

Despite the fact that the changes proposed, if adopted by the OTP, would provide enhanced clarity and specificity to the OTP’s determination of situational gravity, it is nonetheless crucial for the OTP to maintain its gravity analysis as a flexible standard. Although clarity and predictability are desirable qualities in a criminal legal system, the complexity and unpredictability of the type of conduct that amounts to international crimes requires that the OTP’s gravity analysis operate flexibly in order to accommodate vastly variable, unfamiliar or unforeseen circumstances.33 As it is currently structured, with the OTP identifying a non-exhaustive yet lengthy list of factors that it considers, and claiming that it does not weigh any one factor more strongly than others, the OTP’s policies have achieved this flexibility in theory.34 In practice, the OTP has generally appeared to weigh the scale of victimization in a situation as most indicative of the situation’s gravity.35 Yet, this unequal weight has not prevented the OTP from pursuing investigations of situations that may involve less victims when other factors weigh towards a finding of sufficient gravity. Therefore, the OTP should continue its current practice of maintaining the flexibility of its gravity calculus in order to account for exceptional circumstances, beyond scale or systematicity, as contributing a given situation’s gravity.36

IV. Conclusion

In sum, the OTP’s policy regarding its determinations of situational gravity has been largely successful in identifying and investigating the word’s gravest situations within its jurisdiction. As compared with independent empirical data, the OTP’s practices have generally aligned with not only the Rome Statute’s guidance, but also multiple different measures of the gravity of a situation. Notwithstanding the success of the OTP’s gravity determinations, there remain changes and tweaks that can and should be made to the OTP’s gravity calculus in order to better achieve its goals of improving the Court’s institutional legitimacy, deterring future conduct amounting to international crimes, and closing the impunity gap in international law. By better incorporating considerations of disparate power and vulnerability of perpetrators and victims, respectively, the OTP can better protect the most vulnerable groups who are least able to protect themselves from criminal conduct or subsequently punish it. Moreover, crimes perpetrated by States represent one of the largest impunity gaps in the area of international law, as those crimes are almost never investigated or prosecuted domestically, and, with a few exceptions, have not been adequately investigated or prosecuted by the OTP. The limited resources of the OTP strongly suggest that reducing the number of investigations it is engaged in will better serve to advance the Court’s interests in thorough prosecutions and in increasing the perceived (and actual) likelihood of investigation, apprehension and prosecution, which is a driving force for effective deterrence. Finally, the OTP, while altering its practices according to the above recommendations, should nonetheless maintain that its gravity determinations are based on a flexible analysis that can adjust to unforeseen circumstances and, accordingly, can strongly consider factors of gravity beyond scale and systematicity.

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

1. 1.

   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], Art. 5, available online; Susana SáCouto & Katherine A. Cleary, The Gravity Threshold of the International Criminal Court, 23 Am. U. Int’l L. Rev. 807 (2008), available online. ↩

2. 2.

   SáCouto & Cleary, supra note 1. ↩

3. 3.

   See id.; Margaret M. deGuzman, Choosing to Prosecute: Expressive Selection at the International Criminal Court, 33 Mich. J. Int’l L. 265, 269 (2012), available online; 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, 210 (2018), available online. ↩

4. 4.

   Rome Statute, supra note 1, at Articles 6–8 bis. ↩

5. 5.

   Rome Statute, supra note 1, at Article 17. ↩

6. 6.

   Id. ↩

7. 7.

   Office of the Prosecutor, ICC, Policy Paper on Case Selection and Prioritisation ¶ 37 (Sep. 15, 2016), available online. ↩

8. 8.

   Id. ¶ 39. ↩

9. 9.

   Id. ¶ 40. ↩

10. 10.

    Id. ¶ 41. ↩

11. 11.

    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. ↩

12. 12.

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

13. 13.

    Id. ↩

14. 14.

    Policy Paper on Case Selection and Prioritisation, supra note 7, ¶ 38. ↩

15. 15.

    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. ↩

16. 16.

    Id. at 36. ↩

17. 17.

    Id. ↩

18. 18.

    Ford, supra note 3, at 248. ↩

19. 19.

    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, 48 (2017), available online. ↩

20. 20.

    Id. at 62–64. ↩

21. 21.

    Id. ↩

22. 22.

    Heller, supra note 11, at 14–15. ↩

23. 23.

    Id.; Luis Moreno-Ocampo, ICC Prosecutor, Informal Meeting of Legal Advisors of Ministries of Foreign Affairs 9 (Oct. 24, 2005), available online. ↩

24. 24.

    Heller, supra note 11, at 14. ↩

25. 25.

    Id. ↩

26. 26.

    Id. at 16. ↩

27. 27.

    Ford, supra note 3, at 248. ↩

28. 28.

    SáCouto & Cleary, supra note 1, at 840. ↩

29. 29.

    Ford, supra note 19, at 67. ↩

30. 30.

    Id. ↩

31. 31.

    Id. at 65. ↩

32. 32.

    Daniel Krcmaric, The Justice Dilemma: International Criminal Accountability, Mass Atrocities and Civil Conflict (2015) (Ph.D. dissertation, Duke University), available online. ↩

33. 33.

    SáCouto & Cleary, supra note 1, at 843. ↩

34. 34.

    Office of the Prosecutor, ICC, Draft Criteria for Selection of Situations and Cases 4 (Jun. 2006). ↩

35. 35.

    Heller, supra note 11, at 3. ↩

36. 36.

    SáCouto & Cleary, supra note 1, at 843. ↩

B. Customary International Law

Customary international law results when there’s a general and consistent practice of states following laws from a sense of legal obligation (opinio juris). The assessment of state practice is an objective one. The significance of a particular act as indicia of custom varies depending on its context and may also be subject matter specific. For example, a presidential statement would be more important than a military commander’s unless in the context of the law of war. This is one form of aperture. Treaties may be strong empirical evidence of state practice, especially if they purport to codify customary international law. Evidence of state practice may be divined from diplomatic contacts, public statements, legislative and executive acts, military decisions, treaties, and decisions of courts and international organization. These areas tend to be married to political processes, especially in democratic countries. While state practice should be uniform, extensive, and representative, the political context surrounding certain issues can lead one state’s practice to carry more weight than the other. Further, political reasoning may lead one state to act as a persistent objector to a developing norm of customary international law, which would relieve that state from abiding by the rule—a practice that was embraced by the United States at the end of the twentieth century.5 However, rules that are already crystallized into customary law are binding upon all States of the international community—a State is not allowed to opt out unilaterally.6 The assessment of opinio juris is a subjective one. The principle idea embedded in this requirement is to distinguish customary international law from everyday customs of states followed out of formality, courtesy, convenience, or habit.

C. Soft Law

Since 1945, the significance of “general principles of law” recognized by civilian nations referenced in the ICJ Statute has decreased. Soft law has risen in prominence as a source of international law. Soft law refers to instruments which are neither strictly binding norms of law, nor completely irrelevant political maxims. They operate in a grey zone between law and politics.7 It is defined as declared norms of conduct understood as legally nonbinding by those accepting the norms, emanating from regulatory activities that are non-binding although states comply without a core treaty. Soft law has developed because the international system has become more interdependent and states desire informal agreements that do not require costly negotiations on binding laws in rapidly developing domains. Even more so than customary international law, the reasoning for states to participate in the creation of soft law is impacted by political processes at play among states. Soft law may reflect or help form a standard of appropriate conduct and induce significant and actual conformity with that standard even in the absence of applicable binding custom or treaty, and may eventually give rise to a customary international law norm.

III. Case Studies

A. Evolution of Crimes Against Humanities

The phrase “crimes against humanity” was coined by U.S. Supreme Court Justice Robert Jackson during deliberations at the London Conference that framed the Nuremberg Charter.8 This phrase has resonated throughout the legal and moral regimes in the post World War II era.9 M. Cherif Bassiouni commends the aptness of this phrase, as it encompasses the enormity of the underlying offenses as core violations of humanity and suggests that these offenses aggrieve all human beings regardless of their community.10 David Luban argues that “crimes against humanity” signifies that all humanity is the interested party and that humanity’s interest may differ from the interests of the victims.11 He relies on an argument made by Hannah Arendt in Eichmann in Jerusalem in which she explains:

The physical extermination of the Jewish people was a crime against humanity, perpetrated upon the body of the Jewish people […] insofar as the victims were Jews, it was right and proper that a Jewish court should sit in judgment; but insofar as the crime was a crime against humanity, it needed an international tribunal to do it justice.

Because humans are inherently social creatures, they require artificial political organizations which inevitably threaten their well-being, as was the case with the Nazi regime and the Holocaust.12 Crimes against humanity developed as a customary norm of international law in response to the very worst of those threats.13

Luban goes on to analyze the various iterations of crimes against humanity since their introduction in the Nuremberg Charter. Article 6(c) of the Nuremberg Charter sets out the definition for crimes against humanity. These crimes are typically committed against fellow nationals as well as foreigners. This category of crime was contemplated by Nuremberg because, prior to World War II, war crimes against civilian populations only covered offenses against foreign populations, whereas the Holocaust was a Nazi endeavor against their own nationals. Article 6(c) was intended to cover the gap in law to hold accountable governments who used their resources to murder their own people.14 The “unique evil” criminalized by this article is politically organized persecution and the slaughter of people under one’s own political control.15

Crimes against humanity are committed by politically organized groups acting under color of policy.16 The Nuremberg Charter presupposed that crimes against humanity were committed by agents of a state, and this nexus was deemed necessary to bring the crimes into the purview of international law.17 However, the context of the Bosnian War and the Rwandan Genocide led drafters of the ICTY Statute to weaken this “state action” requirement due to the loose affiliation of perpetrators with the state.18 The ICTR Statute replaced the “armed conflict” language of the ICTY Statute with the requirement of a “widespread or systematic attack against any civilian population on national, political, ethnic, or racial grounds,” because armed conflict implied state sanctioned action and many of the perpetrators of genocide in Rwanda were civilians with no connection to the armed conflict.19 The Rome Statute for the ICC adopted this language, but removed the requirement that the attack be on national, political, ethnic, racial, or religious grounds, and require connection of the offense to a “State or organizational policy.”20 The metamorphosis of the state action requirement for crimes against humanity into a broader element of “widespread and systematic attack” linked with a state or organizational policy shows that crimes against humanity are crimes committed through political organization. There are scholars who argue provisions of the Rome Statute are reflective of customary international law; in fact, the International Committee of the Red Cross study on customary international law is replete with references to different articles of the Statute.21 Even if crimes against humanity as articulated in the Rome Statute are not settled principles of customary international law, their evolution and subsequent ratification by state parties to the ICC are evidence of state practice. The collective agreement by states on this definition would advance the development of soft law and eventually solidify as a customary norm through processes that were impacted by the politics of World War II, the Bosnian War, and the Rwandan Genocide.

B. The Crime of Slave Trade

Another example of political processes impacting the development of customary international norms is the criminalization of slave trade and slavery. International criminal lawyer Patricia Sellers argues that the crime of slave trade has been taken out of the international community’s legal arsenal, to the disservice of victims who have been traded.22 In her argument, she details the history of the slave trade and slavery, their outlaw, and how the political focus on the prohibition of slavery has pushed it into the spotlight as a customary theory under which alleged perpetrators are prosecuted in international courts. Meanwhile, the crime of the slave trade which has elements distinct from slavery, and has a broader scope of individuals to whom it can apply, is a legal tool for prosecutors that has slid into obscurity.

Sellers explains that the U.S. and the U.K. hastened to stop the import of African slaves after the Haitian revolution, with the U.K. banning its own slave trade in 1807. The abolition movement gripped North and South America towards the end of the 19th and in the early 20th century. The 1926 Slavery Convention outlawed slavery and the slave trade, defining slave trade as all acts involved in the capture, the acquisition, or the disposal of a person with the intent to reduce him or her into slavery.23 The further exchange and transport over someone who is already a slave is still slave trade, and as long as the intent is to eventually reduce someone to slavery, the crime has occurred. This means that in a chain of slave traders trading one person, even if the person is only reduced to slavery after the fourth trade, all traders are guilty of slave trading because they possess the requisite mens rea of the crime.

However, the specter of slavery in its different forms has overshadowed charges of slave trade in modern international jurisprudence. The ICTY and ICTR Statutes enumerate enslavement as a crime against humanity, but the statutes don’t explicitly enumerate the prohibition of the slave trade as a crime against humanity.24 The Rome Statute of the ICC erases slave trade as an international crime. It is not enumerated as a War Crime under Article 8 despite the prohibition of the slave trade being an uncontroverted principle of international humanitarian law.25 Further, Article 7 of the Rome Statute describes the crime against humanity of enslavement in a peculiar form, inserting “trafficking in persons, particularly women and children” into the definition. Trafficking, however, is grounded in prohibitions against enforced prostitution and is not related to the West African or East African slave trade.

Sellers argues that the crime of slave trade from relevant international treaties has jus cogens and erga omnes obligations. Several factors may have contributed to its explicit omission in international judicial instruments as a war crime or crime against humanity, or as its own distinct international crime based on customary international law. She writes:

The Rome Statute sanctions only persons exercising powers attaching to rights of ownership, not perpetrators of the slave trade who transport or engage in any acts of the slave trade without exercising such powers. The 1926 Slavery Convention, 1956 Supplemental Slavery Convention, and Additional Protocol II condemn the slave trade as a distinct crime, not as a lesser-included offense of slavery, a form of aiding and abetting slavery, or as a ‘form’ of trafficking. Muddling the slave trade and trafficking is problematic.26

One of the reasons for this is the increased attention that the international community paid to the sexualization of slavery, leading up to the Rome Statute. This is another way in which politics has marred the development of an international norm. The tension in this created an avenue for the Office of the Prosecutor to investigate and draft policy papers examining the scope of the Court’s jurisdiction on sexual and gender-based crimes (including the crime of trafficking), which in turn impacts the investigations she chooses to bring under her Article 15 powers.27

IV. The “International Community as a Whole” is Inherently Political

The same political processes that impact the formation of customary international norms also impact the interpretation of the “international community as a whole.” The international community represents, in a classical view, the collective ethical and moral opinion of states.28 However, non-state organizations and institutions, as well as internal organizations and individuals operating without state sanction, play a part in the international community’s politics.29 To the extent that a state’s interests and identities correspond to and complement that of the political community, a state will behave and act in ways that support the values of the international community.30

The concept of an international community drives the development of jus cogens and erga omnes obligations, which are frequently cited for the development and application of international law, as explained above.31 These norms drive the integration of a community of states and the people that they represent into a community of mankind with a distinct set of higher core values.32 These designated higher purposes and values are considered non-derogable and constitute the basic elements of a world “constitution.”33

One of the leading promoters of the idea of an international community was the former secretary-general of the United Nations, Kofi Annan. In a widely quoted 1999 speech, he spoke of a shared vision of a better world for all people, as set out in the U.N. Charter.34 Humankind has a common vulnerability in the face global threats, and it responds with frameworks of international law, treaties, and human rights conventions.35

The U.N. and other international institutions are the locus of manifestation for the international community. A similar articulation of what “international community” means can be found in some of the holdings of the Permanent Court of International Justice, and its successor, the International Court of Justice, which was established at the same time as the United Nations.36

V. Conclusion

The development of customary international law and soft law norms are often impacted by the political machinations of states and their state practice regarding a rule. Examples of this are seen in the evolution of crimes against humanity in the Rome Statute, as well as the disappearance of the slave trade as a criminal charge in the international lexicon. In the same way that political process impact the development of law, they also shape the interests of the international community. Because they are rooted in the development of customary international law, the interests of the international community remain compatible with the Prosecutor’s explicit commitment to leave political considerations out of her decisions to investigate a situation because political considerations are implicitly embedded in the community and the laws with which she works.

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

1. 1.

   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], Art. 15, available online. ↩

2. 2.

   Id. at Preamble. ↩

3. 3.

   See Office of the Prosecutor, Int’l Crim. Ct., available online (last visited Jun. 25, 2021). ↩

4. 4.

   Statute of the International Court of Justice, 59 Stat. 103 (Jun. 26, 1945) Art. 38, available online. ↩

5. 5.

   Patrick Dumberry, Incoherent and Ineffective: The Concept of Persistent Objector Revisited, 59 ICLQ 779 (Jul. 4, 2010), available online, doi. ↩

6. 6.

   Michael Akehurst, Custom as a Source of International Law, 47 British Y.B. of Int’l L. 1 (Nov. 1, 1976), paywall, archived, doi. ↩

7. 7.

   Alexander Orakhelashvili, Akehurst’s Modern Introduction to International Law (Dec. 3, 2018), paywall. ↩

8. 8.

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

9. 9.

   Id. at 86. ↩

10. 10.

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

11. 11.

    Luban, supra note 8, at 88. ↩

12. 12.

    Id. at 90. ↩

13. 13.

    Id. ↩

14. 14.

    Id. at 93. ↩

15. 15.

    Id. at 94. ↩

16. 16.

    Id. at 95. ↩

17. 17.

    Id. at 96. ↩

18. 18.

    Id. ↩

19. 19.

    Statute of the International Tribunal for Rwanda, UNSC Res. 955 (Nov. 8, 1994) [hereinafter ICTR Statute], available online.

    See also Mahmood Mamdani, When Victims Become Killers: Colonialism, Nativism, and the Genocide in Rwanda 6–7 (Sep. 1, 2002), available online. ↩

20. 20.

    Rome Statute, supra note 1, Art. 7. ↩

21. 21.

    Yudan Tan, The Identification of Customary Rules in International Law, 34 Utrecht J. Int’l and Eur. L. 92 (Nov. 22, 2018), available online, doi. ↩

22. 22.

    Promise Inst. for Hum. Rts., (Still) Missing in Action: The International Crime of the Slave Trade, YouTube (Oct. 23, 2020), available online. ↩

23. 23.

    Convention to Suppress the Slave Trade and Slavery, League of Nations, 60 LNTS 253 (Sep. 25, 1926), available online. ↩

24. 24.

    Statute of the International Criminal Tribunal for the Former Yugoslavia, UNSC Res. 827 (adopted May 25, 1993, as last amended Jul. 7, 2009), available online; ICTR Statute, supra note 19. ↩

25. 25.

    General Order No. 100, Adjutant General’s Office (1863), available online. ↩

26. 26.

    Patricia Viseur Sellers & Jocelyn Getgen Kestenbaum, Missing in Action: The International Crime of the Slave Trade, 18 J. Int’l Crim. Just. 517 (May 2020), available online, archived, doi. ↩

27. 27.

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

28. 28.

    Robert Jackson, The Global Covenant: Human Conduct in a World of States (Mar. 2003), paywall, doi. ↩

29. 29.

    Tod Lindberg, Making Sense of the International Community, Council on Foreign Rel. (Jan. 2014), available online. ↩

30. 30.

    Jackson, supra note 28. ↩

31. 31.

    M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59 Law & Contemp. Probs. 63, 66 (1996), available online. ↩

32. 32.

    Pemmaraju Sreenivasa Rao, The Concept of International Community in International Law: Theory and Reality, in International Law between Universalism and Fragmentation 85 (Isabelle Buffard, James Crawford, Alain Pellet & Stephan Wittich eds., Dec. 10, 2008), paywall. ↩

33. 33.

    Id. ↩

34. 34.

    Press Release, U.N., Secretary-General Examines “Meaning of International Community” in Address to DPI / NGO Conference, SG/SM/7133 (Sep. 15, 1999), available online. ↩

35. 35.

    Id. ↩

36. 36.

    Antonios Tzanakopoulos, The Permanent Court of International Justice and the “International Community”, in Legacies of the Permanent Court of International Justice 339 (Malgosia Fitzmaurice & Christian Tams eds., Apr. 21, 2012), available online. ↩