The Gravity Question — Comments
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- Milton Owuor: Why the Question of the Sufficiency of Gravity in the Rome Statute Remains Problematic I. Prelude The requirement of “sufficient gravity”, as one of the bases to determine the admissibility threshold for cases under the jurisdiction of the International Criminal Court (ICC), is a matter that has generated considerable scholarly discourse. The concept of gravity threshold is incredibly critical at almost every stage of the... (more)
- Muhammad Muzahidul... Summary Gravity issue is very important both for the Office of the Prosecution (OTP) and the International Criminal Court (the Court or ICC) for the selection of ‘situations’ and ‘cases’. Through the Rome Statute ICC is mandated to try four crimes i.e. genocide, war crime, crimes against humanity, and the crime of aggression. All the four crimes are serious in nature. The prohibition of those four crimes had already attained the norms of jus cogens; because the nations of... (more)
- Melis: The Function of the Gravity Analysis in the International Criminal Court’s Mandate to End Impunity I. Introduction Article 17 of the Rome Statute provides that a case must be of sufficient gravity to justify action by the International Criminal Court (ICC).1 Thus, the Office of the Prosecutor (OTP) considers the gravity of crime in its case selection process. As outlined in its 2016... (more)
- asykora: In Selecting Cases to Investigate and Prosecute, How Wide Should the Prosecutor’s Aperture Be? I. Introduction The very first article of the Rome Statute establishing the ICC states that the Court “shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern.”1 Article 5 elaborates this point, stating:... (more)
- Patrick King: I. Introduction From its inception, the International Criminal Court (ICC or the Court) has set out to address and adjudicate only those cases of most serious concern to the international community as a whole.1 Gravity is a crucial concept in the operation of the International Criminal Court. Despite its importance to the ICC, and, in particular, to the Office of the Prosecutor (OTP), gravity is left largely undefined by the... (more)
- eboldis: An Expressivist Approach to Case Selection Introduction As the Special Tribunal for Lebanon (STL) noted: Criminal investigation and prosecution […] is unavoidably selective in any system. […] Selectivity is part of the history of international criminal jurisdictions, and an inevitable consequence of establishing an international criminal court or tribunal.1 This is even more true for the... (more)
- ramyaswami: Aperture of the Prosecutor: Reconciling the Concerns of the International Community with Political Influences I. Introduction In selecting cases to investigate and prosecute under her Article 15 powers, there is contention about how wide the Prosecutor’s aperture should be.1 Under the Rome Statute, the ICC prosecutor must abide by an extensive list of rules and... (more)
- madhavi.narayanan: Reversing the ICC’s Case Selection Process I. Introduction The International Criminal Court (ICC) is constantly in a state of struggle to prove that it is an effective, legitimate institution. Because there are literally hundreds of situations of grave crimes to choose from, which cases the Office of the Prosecutor (OTP) decides to select signals to the broader international community how it is acting on its... (more)
- jak223: The Prosecutor’s Aperture and the Deterrent Effect of the ICC A primary goal of the International Criminal Court (ICC) is to deter future perpetrators from committing crimes considered by the international community to be the most grave or serious. “Without justice, conflicts, atrocities and fear would reign free.”1 This justice is accomplished by holding past perpetrators accountable for those crimes via prosecutions and... (more)
Comment on the Gravity Question: “What is the universe of cases upon which the ICC should focus? What should be the threshold for the gravity that warrants investigation of a situation or prosecution of those most responsible?”
The Prosecutor’s Aperture and the Deterrent Effect of the ICC
A primary goal of the International Criminal Court (ICC) is to deter future perpetrators from committing crimes considered by the international community to be the most grave or serious. “Without justice, conflicts, atrocities and fear would reign free.”1 This justice is accomplished by holding past perpetrators accountable for those crimes via prosecutions and investigations conducted by the Office of the Prosecutor (OTP). At the heart of the Prosecutor’s discretion in case selection is gravity. However, the Rome Statute,2 which creates the ICC, provides little in the way of guidelines for the exercise of the OTP’s discretion and provides no definition of gravity as there was an “understandable reluctance to rank or quantify extreme human suffering.”3
In an effort to increase transparency, the OTP outlined its policy related to case selection. The OTP’s 2016 Policy Paper on Case Selection and Prioritization4 (The Policy) identified those factors that may be taken into account when selecting cases for prosecution, specifically:
the gravity of the crimes,
the degree of responsibility of the perpetrator, and
and the charges themselves.5
The Policy also provided a definition of gravity, defining it as “the most serious crimes within a given situation that are of concern to the international community as a whole.”6 It has also been suggested that the Prosecutor should adopt a narrow aperture in case selection and focus on only the most serious crimes and perpetrators within a given situation. However, both the OTP’s definition of gravity and the suggestion of the adoption of a narrow aperture are problematic as they do not promote the ICC’s goal of deterrence.
The Prosecutor should prioritize the deterrent effect of the ICC as it has been shown to be historically effective and is a clear goal of the ICC. In order to prioritize and promote deterrence, the Prosecutor should adopt a wide aperture in both the definition of gravity and case selection. Part I argues that the Prosecutor should prioritize deterrence in case selection as evidence assessing outcomes of the ICC has shown case selection to be an effective deterrent. Such a prioritization would also support the overall ICC goal of deterrence. Part II argues that the definition of gravity contained within The Policy is too narrow to promote deterrence as it is ambiguous and forces a plain meaning interpretation, which may lead to the failure to prosecute crimes that fall under the ICC’s jurisdiction. Finally, Part III argues that a narrow aperture in case selection would also diminish the deterrent effect of the ICC as evidence suggests that it would limit the risk of accountability for perpetrators. Only the adoption of a broad definition of gravity, and a wide aperture by the Prosecutor, can effectively promote the ICC’s goal of deterrence.
I. The Prosecutor Should Prioritize Deterrence in Case Selection Because It Supports the Goals of the ICC and Evidence Has Shown Case Selection Does Provide a Deterrent Effect
The Prosecutor enjoys immense discretion in deciding upon the strategies and policies for case selection, investigation, and prosecution. In considering cases for investigation and prosecution, the Prosecutor should prioritize the selection of cases that promote the deterrent effect of the ICC. It is clear that deterrence is an overarching goal for the ICC. Deterrence is specifically identified in the Rome Statute.7 In addition, ICC President Chile Eboe-Osuji outlined the importance of deterrence when he said:
The deterrent effect of the ICC is also important for its legitimacy in the international community.
It appears the international community has an expectation of a deterrent effect from the ICC. As such, this should be of concern to the Prosecutor when selecting cases for investigation and prosecution.
In addition, evidence shows that case selection of the Prosecutor does have a deterrent effect on perpetrators. A 2016 study conducted by Hyeran Jo, Mitchell Radke, and Beth Simmons10 found that:
For example, in Uganda, investigation into rebels groups, such as the Lord’s Resistance Army:
It appears that it was not the fact that the ICC existed or was involved in the situation, but rather the choice of the Prosecutor in case selection and investigation that had the most deterrent effect on these groups.
Given this evidence that case selection has a deterrent effect on perpetrators, the Prosecutor should prioritize selecting cases and situations that further this effect. This cannot be accomplished if the Prosecutor utilizes too narrow a definition of gravity or a narrow aperture in case selection and investigation.
II. The Definition of Gravity in The Policy Does Not Support the ICC’s Goal of Deterrence
If the goal of the Prosecutor in selecting cases and situations for further investigation and prosecution is deterrence, then the definition of gravity in The Policy does not support this goal. Gravity is at the heart of the Prosecutor’s discretion in case selection. The Prosecutor is “required to consider the gravity of actual or potential cases in deciding whether to act in particular situations and cases.”14 The Policy defines gravity as “the most serious crimes within a given situation that are of concern to the international community as a whole.”15 However, this definition of gravity “is uncertain in the way that most efforts to expound gravity are uncertain,”16 as it is unclear as to what constitutes “the most serious crimes” and what crimes are “of concern to this international community.” As the international community has provided “virtually no guidance about what goals [the ICC] should seek to achieve through the cases it selects, beyond the vague mandate to strive to end impunity”17 for crimes deemed most serious, it is unclear what crimes are of “concern to the international community as a whole.” The Rome Statute itself provides no guidance, as it intentionally left the “concept of gravity ambiguous, allowing states with divergent visions of the Court’s role to believe, or at least hope, that their vision will prevail.”18 This also suggests that there may not, in fact, be a consensus as to what crimes are “of concern to this international community.” This lack of a clear definition or definitional guidelines is problematic as:
Without some type of clarity or consensus, the definition of gravity contained within The Policy is essentially meaningless.
As the definition is ambiguous, one can only look to the plain meaning of the phrase. Under this reading, it appears that the definition of gravity would encourage the Prosecutor to focus only on the most serious acts and the most serious perpetrators in a given situation, to the detriment of other less serious crimes that may be admissible to the ICC’s jurisdiction. If the plain reading is truly the intent of the OTP’s definition, then it narrows the scope of the Prosecutor’s discretion in a way that will lead to the failure to prosecute cases, which in turn could affect the ICC’s deterrent effect on the international community. If the Prosecutor declines to prosecute cases other than those of the most responsible perpetrators, “proceeding under such circumstances may undermine the ICC’s goals, in particular the principal goal of crime prevention.”20 As evidence from Uganda reveals, the Prosecutor’s decision to prosecute in a given situation has a deterrent effect not only on the most responsible perpetrators, but also on those who may have committed lesser crimes or who may be considering future crimes. A narrow definition of gravity that removes these cases from the Prosecutor’s selection criteria will necessarily affect the ICC’s overall goal of deterrence. This, in turn, could diminish the legitimacy of the ICC in the international community. The Appeals Chamber, in the situation in Democratic Republic of Congo, also questioned the logic of focusing only on the most responsible perpetrators to the detriment of focusing on other perpetrators.
Given this, the OTP’s current definition of gravity is too narrow to promote the ICC’s goal of deterrence.
While the other two criteria for consideration in The Policy provide some clarification to the Prosecutor in case selection, they are also part of determining gravity, which further adds to the ambiguity of the definition of gravity adopted by The Policy.
The “degree of responsibility of the perpetrators” and the “charges themselves” are essentially evaluating the culpability of the perpetrators and the harms inflicted. As these are part of a gravity analysis, they point to the importance of a clear definition of gravity. The definition of gravity adopted by the OTP should not limit the ability of the Prosecutor to select cases that may not be the most serious, but provide a deterrent effect in a particular situation. As the definition stands, it would force the Prosecutor to adopt a narrow aperture. Such a narrow aperture would significantly diminish the ICC’s ability to deter future perpetrators as their potential risk of prosecution is significantly lowered. The OTP should adopt a broad, unambiguous definition of gravity that allows the Prosecutor to exercise discretion in case selection that maximizes the deterrent effect of the ICC for all perpetrators, not only those that are most responsible for crimes committed in a given situation.
III. A Narrow Aperture Will Diminish the Deterrent Effect of the ICC
The utilization of a narrow aperture by the Prosecutor in deciding which cases to investigate and prosecute would lead to a failure to prosecute many crimes within the jurisdiction of the ICC. This would diminish the deterrent effect of the ICC.
The Prosecutor should utilize a wide aperture to ensure that the most perpetrators are deterred.
Accountability for perpetrators is the bedrock of deterrence in international criminal law. “General deterrence is only possible if the Court’s existence and actions raise the perceived likelihood that an individual will be tried and punished.”24 Without the risk of prosecution and punishment, perpetrators will act with impunity.
Perpetrators must believe that they will be held accountable for their actions if the ICC becomes involved. This idea was extended by the International Criminal Tribunal for the Former Yugoslavia, indicating that “[i]t is the infallibility of punishment, rather than the severity of the sanction, which is the tool for retribution, stigmatization and deterrence.”26 Only a wide aperture in case selection would create the possibility that any and all perpetrators could be subject to investigation or prosecutions by the ICC. A narrow aperture would result in fewer prosecutions for perpetrators of less serious crimes falling under ICC jurisdiction. This would, in turn, diminish the deterrent effect of the ICC. As such, the Prosecutor should utilize the widest universe of cases possible, essentially a wide aperture, in determining cases for investigation and prosecution.
Deterrence relies on the assumption that perpetrators are rational actors who engage in a cost-benefit analysis when deciding whether or not to engage in criminal behavior.27 Part of this cost-benefit analysis is the likelihood of being held accountable for their conduct. Scholarship in the area of deterrence generally recognizes “that it is not the severity of the punishment which creates a deterrent effect but, rather, the likelihood of being prosecuted and condemned.”28 However, if there is no potential risk to perpetrators that they may be investigated or prosecuted, this cost-benefit analysis becomes unbalanced in favor of the benefits of criminal acts as the costs are significantly reduced. “[W]hen offenders do not perceive a punishment as likely to be imposed, then there will be little disincentive toward offending.”29 The Prosecutor’s adoption of a narrow aperture in case selection would shift the cost-benefit analysis for perpetrators as the risk of prosecution affects the cost-benefit analysis of perpetrators.
The situation in Uganda reveals how the Prosecutor’s case selection and investigation affect the cost-benefit analysis of potential perpetrators as data suggests that the ICC’s involvement in Uganda “discouraged rebels from intentionally killing civilians.”31 With this type of data, it is challenging to see why the Prosecutor should adopt a narrow aperture in case selection. Potential perpetrators must be forced to engage in a cost-benefit analysis that includes a real risk of investigation or prosecution by the ICC. The adoption of a narrow aperture would place an unnecessary limitation on this cost-benefit analysis and could encourage perpetrators to engage in criminal behavior. A wide aperture has been shown to affect all perpetrators and, as such, has already shown that it can promote the deterrent effect of the ICC. The adoption of a narrow aperture would certainly diminish this effect of the ICC.
Since its inception, the ICC has been intent on deterring perpetrators from engaging in the worst crimes. This goal is identified in the Preamble to the Rome Statute, as well as in statements from the ICC itself. The OTP’s recent effort to clarify its case selection and prioritization strategy has led to more questions than answers. Some have argued that the Prosecutor should adopt a more limited view of gravity and thus engage in a narrow aperture when it comes to selection of cases for investigation and prosecution. However, this would significantly impair the ICC’s ability to deter perpetrators.
The Prosecutor should prioritize the goal of deterrence in selecting cases for investigation and selection. With deterrence a clear goal of the ICC, the Prosecutor should be charged with supporting this goal. This is particularly true given the evidence that the ICC has, in fact, been shown to deter perpetrators from continuing to engage or engaging in the future in bad acts. As the goal has been met, at least somewhat, the Prosecutor should not engage in a case selection strategy that could potentially diminish this effect.
As it stands, the OTP’s definition of gravity continues to be ambiguous and, as such, does not support the ICC’s goal of deterrence. The ambiguity in the definition forces a plain reading, which seems to indicate that only the most significant perpetrators and the most significant cases will be investigated and prosecuted by the ICC. This reading would diminish the potential for lower-level perpetrators to be investigated and prosecuted. The lack of potential accountability would diminish the ICC’s deterrent effect and would act in opposition to the ICC’s goal of deterrence.
As deterrence relies on the potential for the accountability of perpetrators, any strategy that would limit accountability would directly affect deterrence. The adoption of a narrow aperture by the Prosecutor would have such effect as it would change the calculus of a perpetrator’s cost-benefit analysis. With a narrow aperture, the likelihood of being brought before the ICC would be significantly reduced. This may lead to perpetrators feeling more empowered to act with impunity.
A strategy that adopts both a narrow definition of gravity and a narrow aperture would act in opposition the ICC’s goal of deterrence. As such, the Prosecutor should adopt a case selection strategy that is broad, inclusive, and promotes deterrence.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Interview with Chile Eboe-Osuji, UN News, Oct. 1, 2020, available online. ↩
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], available online. ↩
Margaret M. deGuzman, Gravity and the Legitimacy of the International Criminal Court, 32 Fordham Int’l L.J. 1400, 1401 (2008), available online. ↩
Office of the Prosecutor, ICC, Policy Paper on Case Selection and Prioritisation (Sep. 15, 2016), available online. ↩
Id. at 12–15. ↩
Id. at 12. ↩
Rome Statute, supra note 2, at Preamble. ↩
Interview with Chile Eboe-Osuji, supra note 1. ↩
Mark Kersten, Lubanga and the Trouble with ICC Deterrence, Just. in Conflict (Mar. 20, 2012), available online. ↩
Hyeran Jo, Mitchell Radke & Beth A. Simmons, Assessing the International Criminal Court (Jan. 25, 2016), available online. ↩
Id. at 16. ↩
Id. at 20. ↩
Hyeran Jo & Beth A. Simmons, Running the Numbers on ICC Deterrence: When Does It Actually Work?, Open Democracy (Mar. 22, 2016), available online. ↩
deGuzman, supra note 3, at 1408. ↩
Policy Paper on Case Selection and Prioritisation, supra note 4, at 12–13. ↩
Margaret M. deGuzman, How Serious Are International Crimes? The Gravity Problem in International Criminal Law, 15 Colum. J. Transnat’l L. 18 (2012), available online. ↩
Margaret M. deGuzman, Choosing to Prosecute: Expressive Selection at the International Criminal Court, 33 Mich. J. Int’l L. 265 (2012), available online. ↩
Margaret M. deGuzman, The International Criminal Court’s Gravity Jurisprudence at Ten, 12 Wash. U. Global Stud. L. Rev. 475 (2013), available online. ↩
Christopher W. Mullins & Dawn L. Rothe, The Ability of the International Criminal Court to Deter Violations of International Criminal Law: A Theoretical Assessment, 10 Int’l Crim. L. Rev. 771, 781 (Oct. 2010), available online. ↩
deGuzman, supra note 18, at 485. ↩
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” ¶ 73 (AC, Jul. 13, 2006), available online. ↩
deGuzman, supra note 16, at 37. ↩
deGuzman, supra note 18. ↩
Jo, Radke & Simmons, supra note 10, at 10. ↩
Jennifer Schense & Linda Carter eds., Int’l Nuremberg Principles Acad., Two Steps Forward, One Step Back: The Deterrent Effect of International Criminal Tribunals 38–39 (2016), available online. ↩
The Prosecutor v. Anto Furundžija, IT-95-17/1-T, Judgement ¶ 290 (ICTY TC, Dec. 10, 1998), available online. ↩
Stefano Marinelli, The Approach to Deterrence in the Practice of the International Criminal Court, Int’l L. Blog (Apr. 6, 2017), available online. ↩
Mullins & Rothe, supra note 19, at 773. ↩
Jo, Radke & Simmons, supra note 10, at 14. ↩
Id. at 28. ↩
Reversing the ICC’s Case Selection Process
The International Criminal Court (ICC) is constantly in a state of struggle to prove that it is an effective, legitimate institution. Because there are literally hundreds of situations of grave crimes to choose from, which cases the Office of the Prosecutor (OTP) decides to select signals to the broader international community how it is acting on its mandate as a legitimate international institution. This legitimacy depends largely on the perception of the ICC’s audiences, particularly the perception of the community affected by the crime, that the Court is selecting the right cases, crimes, and defendants.1 In the past, the ICC has largely been disconnected from meaningful partnerships with these communities, which hurts the reputation of the Court in the long run as it ends up advancing interests that are not in line with what the actual victims of the crimes prefer. In order to ensure the ICC’s continued legitimacy, the “aperture” of the OTP should be guided by the priorities of communities affected by grave crimes.
II. History of Victims and the ICC
When the Rome Statute was ratified in 2002, one of the reasons it was applauded as a progressive achievement in international criminal law was that, for the first time, victims were designed to be “actors of international justice” instead of simply “passive subjects.”2 In the Preamble, the Statute recalls that “during the last century, millions of children, women, and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity.”3 By directly tying the mandate for the ICC to the lived experiences of millions of victims, the Court centered itself from the start around victims.
In order to ensure that victims remain a part of the Court’s functioning, the Rome Statute also provides several avenues for victim engagement with the Court, such as though participation in trials and the collection of reparations. Specifically, Article 68(3) requires the Court to incorporate the “views and concerns” of victims “at stages of the proceedings” that it determines to be appropriate.4 This clear directive to work for the rights of victims, combined with the flexibility of giving the Court discretion in how to do so, makes it clear that the Rome Statute wanted a framework where victims could actively engage when their interests are affected, regardless of the context.
This passion for inclusion of victims did not fizzle out with the founding of the Court: since its conception, the ICC has continuously strived to work alongside victims, as evidenced by the multitude of offices within the Court working for victims5 and their publications outlining the Court’s objectives and procedures to ensure that victims are active participants in their work. For example, the Victims Participation and Reparations Section (VPRS) published a booklet specifically for victims looking to participate at the ICC;6 the ICC website has a specific section dedicated to victims, inviting them to participate; the OTP has published policy papers related to victim’s rights;7 and the Court maintains a webpage on “Interacting with communities affected by crimes” where it published Outreach Reports for four years.8 ICC Prosecutor Fatou Bensouda even remarked on the BBC’s HARDtalk broadcast that to prosecute is to “stand up for the victims and affected communities.”9
Beyond simply engaging in victim-centered rhetoric, the ICC has actively included victims in its proceedings, further establishing its commitment to be a court centered around victims. Even in the first two cases before the ICC, several hundreds of victims participated in either the criminal or reparations proceedings.10 By 2016, over five thousand victims had participated in just the Bemba case.11
III. Perception from Affected Communities
It is undeniable that the ICC is under constant pressure to establish its legitimacy, partly due to the negative perceptions of the Court in the affected communities. Because it is a global court that depends on contributions and enforcement from States, the ICC is constantly striving to show that it is effective in what it does, which is difficult to do when many victims themselves are unaware of the ICC’s work or do not approve of the Court’s priorities.12 Because of this, many critics label the Court as “unstable” or “ineffective” in achieving its stated goals of deterring future crimes.13
Although the Court does interact with victims and communities affected by crime, it does so mainly after key decisions have been made with regard to proceedings, and through the lens of “managing”14 or “educating” communities of victims, rather than viewing them as equal partners. If victims were to go to the ICC website section designated for them, they would first see calls for applications for opened cases where the Prosecutor has already made the decision to bring charges, guiding victims to submit applications describing their harm by that particular defendant in one particular location during one particular time frame.15 If, by some chance, they were to stumble upon the VPRS’ “Victim Booklet” designed to be “A guide for the participation of victims in the proceedings of the ICC,” they would again see that the booklet focuses on submitting applications for already opened cases or applying for reparations, limiting it to victims who want “help,” not those who want to actively contribute to key decisions being made about who to prosecute.16 Lastly, the ICC’s website has a section on interacting with communities affected by crimes, which could potentially shift the perception of these communities. The website even states:
Despite this sincere introduction, the page goes on to highlight information and education sessions for the communities, as well as local and regional seminars for legal practitioners in the country, thereby maintaining a top-down flow of information instead of truly engaging as reciprocal partners who “have a sense of ownership in the justice process.”18
The OTP’s limited engagement with victims during the preliminary examination and investigation period also affects the perception of the Court by affected communities. The applications that exist on the ICC website for participation of victims are first only for opened cases. Although a more general application is posted as well, it is only available in the languages of the Court and those of already opened investigations: English, French, Arabic, Hebrew, Dari, Pashto, Burmese. Even on the website, victims are strongly discouraged from submitting the application without legal help or advice from the VPRS, who they are supposed to contact on their own. These layers of barriers will both discourage and limit the number of victims who are truly able to engage with the OTP during the early stages of proceedings. Although the ICC operates field offices in situation countries, even if a potential victim travels to the office to report a crime, they are not allowed on the premises for security reasons.19 Victims’ organizations have also commented on the fact that, during the investigation stage, the OTP’s contacts are with the most convenient and accessible victims, and in many affected areas, people do not even know that such an investigation is occurring.20
As a result of this limited engagement, the priorities of the ICC have not always aligned with that of victims, despite the historical and institutional structures designed to center the Court around victims. For example, when former ICC Prosecutor Luis Moreno Ocampo visited Uganda nearly ten years after indicting notorious LRA leader Joseph Kony on thirteen counts of crimes against humanity and war crimes, he was met with frustration and apathy by the members of the Acholi tribe, who were the victims of some of Kony’s most atrocious acts.21 As the Paramount Chief of the Acholi tribe politely explained, he and his people had never supported opening a investigation in the first place, since, according to their traditions, justice is achieved by mutual understanding and dialogue, not prosecution.22
This has an enormous effect on the legitimacy of the Court, because it expended much effort in investigating and prosecuting an individual when even those most directly affected did not wish for ICC intervention. If the victims themselves do not feel that justice would be served after a comprehensive investigation, it is highly unlikely that external actors would feel that the ICC was effectively fulfilling its mandate in that situation. As M.R. Damaška describes:
IV. Reversing the Case Selection Strategy
By reversing the case selection strategy to a bottom-up approach that aligns case selection explicitly with the priorities of the victims through a comprehensive field consultation process during the preliminary examination and investigative stage, the Court can maximize its impact and contribute to rebuilding peaceful societies, which will in turn improve the view of the ICC and its legitimacy around the world.
A. A Bottom-Up Case Selection Strategy
A bottom-up case selection strategy that is centered around victims will have strengthened consultations with victims on the field through partnerships with first responders during the preliminary examination and investigative stage followed by a prosecution of a diverse range of actors, crimes, and communities that responds to the experiences of victims.
First, the OTP must expand its field presence in the early stages of an investigation in order to spread awareness about the investigation and be accessible to victims. Victims who do not have the access or resources to submit online applications to the Court need to both know that an investigation is ongoing and that they can reasonably access OTP staff to report crimes and voice their priorities to the Court. By increasing the duration and quality of field visits to collect first-hand data from victims, the Court can gain a comprehensive picture as to the crimes that occurred and the types of individuals responsible in order to decide whether the case can be selected to bring charges in front of the Court.
In order to safely and effectively work with victims, the OTP should redesign their partnerships with first responder organizations who can provide the crucial access to victims during a preliminary examination. Such organizations working on the ground currently have a “problematic dynamic” with the Court that rests more on compliance with the Court’s requests than a genuine process of working together as substantive equals, despite the fact that such organizations often have crucial information and links to victims:
If the OTP drastically redesigns its partnership with such “intermediary” organizations to guide information collection for the case selection process, it can immediately spread awareness about its activities and truly act on behalf of the victims it seeks to represent.
Second, a bottom-up case selection strategy will require prosecution of a diverse range of actors, crimes, and communities in order to be centered around the experiences of victims. Currently, the OTP Policy Paper on Case Selection Strategy states that the prosecutor will choose charges that are “a representative sample of the main types of victimisation and of the communities which have been affected by the crimes in that situation,” but does not expand on how it will go about that beyond paying “particular attention to crimes that have been traditionally under-prosecuted.” Once the OTP compiles an extensive collection of crimes reported by victims and first responders, it should choose a representative sample both of types of victims and communities of victims. This acknowledgement of various identities and the intersection of those identities with the experience of violence will help the OTP to properly execute its “aim to highlight the gravity of these crimes, thereby helping to end impunity for, and contributing to the prevention of, such crimes.” Such a commitment to bring representative charges will have particular importance in responding to the experience of victims25 and ensure that new victims are not created by the OTP’s exclusion of certain types of victims.26
B. Effects of a Bottom-Up Case Selection Strategy
Choosing a bottom-up case selection strategy will help to maximize OTP resources; contribute to one of the key aims of the Court of creating stable, peaceful societies; and improve the long-term legitimacy of the Court.
A victim-centered case strategy will ensure efficient and effective use of OTP resources. One of the main constraints of the OTP is the limited resources it possesses. Any case selection strategy chosen should seek to maximize the impact from the resources that are available so that the perception of the effectiveness of the Court can improve, thereby potentially paving the way for increased resources. By focusing on collecting information from victims and first responder organizations who have often already collected relevant data, the Court will avoid replicating efforts that have already been taken, thereby preserving its own resources. A bottom-up case selection strategy will also ensure that the OTP avoids choosing cases in which even after successful prosecution, as in the case of the Acholi people in Uganda, victims do not feel that proper justice was served.
The bottom-up case selection strategy will also effectively contribute to rebuilding a stable, peaceful society, which is a key aim of the Court. As seen in the case of Yugoslavia, the process of justice can best create a context for stable society when it establishes individual responsibility and denies collective guilt, dismantles the institutions and leaders responsible for commission of crimes, establishes an accurate historical record, provides victim catharsis, and promotes deterrence.27 A victim-centered strategy enhances all of these functions of justice. By spending more time spreading awareness of the investigation and collecting information from victims, the strategy ensures that a wider percentage of the population knows that such crimes are being brought to justice and hence deters such crimes in the future. It also widens the scope of crimes reported, minimizing the risk of a biased historical record. Creating genuine opportunities for victims to report, even if their particular case is not chosen, facilitates victim catharsis, as not all victims can reasonably serve as witnesses in the actual proceedings. Working with first responder organizations instead of independently asking for permission through government structures will increase the opportunity for victims to speak out against leaders who are currently in power, who are often silenced in the current case strategy.28 Prosecution of a wide variety of victims and crimes will also establish individual responsibility on various levels and ensure that all types of individuals, from low-ranking officers to politicians, understand that they cannot commit future crimes or interfere with the peace-building process.29
Lastly, the victim centered case selection strategy will improve the view of the Court around the world, thereby enhancing its legitimacy. The relevant “international community” that the Court should be concerned about during selection are the persons affected; if victims they feel that justice was served, then the Court will be perceived as more legitimate.
Since its founding, the ICC has struggled with numerous complaints about its case selection process.30 By reversing the case selection strategy to a bottom-up approach that prioritizes the rights of victims, the OTP can make its process more transparent and legitimate as well as aligning it with the clear victim-centered design of the Court.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Margaret M. deGuzman, Choosing to Prosecute: Expressive Selection at the International Criminal Court, 33 Mich. J. Int’l L. 265, 276 (2012), available online. ↩
Office of the Prosecutor, ICC, Policy Paper on Victims Participation (Apr. 2010) [hereinafter Victims Participation Policy], available online. ↩
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. ↩
Id. Art. 68. ↩
(The Victims Participation and Reparations Section (VPRS) is focused on helping victims submit applications to the Court, organizing their legal representation, and educating them of their rights related to participation and reparations. Victims and Witnesses Section (VWS) supports and protects victims who appear before the Court. There are also two independent offices, the Office of Public Counsel for Victims (OPCV) and the Trust Fund for Victims (TFV). The OPCV assists with legal representation in court and the TFV helps to carry out orders of reparations on behalf of the victims). ↩
Victims Participation and Reparations Section, ICC, Victims Before the International Criminal Court: A Guide for the Participation of Victims in the Proceedings of the ICC (Dec. 4, 2018) [hereinafter Victim’s Booklet], available online. ↩
See Victims Participation Policy, supra note 2; see also Office of the Prosecutor, ICC, Policy Paper on the Interests of Justice (Sep. 2007), available online. ↩
Interacting With Communities Affected by Crimes, Int’l Crim. Ct., available online (last visited Jun. 24, 2021). ↩
HARDtalk, Zeinab Badawi Speaks to the Prosecutor at the International Criminal Court, Fatou Bensouda, BBC, Jul. 3, 2017, available online. ↩
Mariana Pena, Victim Participation in International Criminal Proceedings ¶ 16, MPEPIL (Apr. 2019), paywall (last visited Jun. 24, 2021). ↩
Sarah Hibbert, The Bemba Acquittal: A Blow to the ICC’s Legitimacy in a Time of Crisis, 34 Temp. Int’l & Comp. L.J. 95 (2019), available online. ↩
Id. at 95–96. ↩
REDRESS Victims’ Central Role in Fulfilling the ICC’s Mandate (Nov. 20, 2009) [hereinafter Victim’s Role], available online. ↩
Victims, Int’l Crim. Ct., available online (last visited Jun. 24, 2021). ↩
Victim’s Booklet, supra note 6. ↩
Interacting With Communities Affected by Crimes, supra note 8. ↩
Victim’s Role, supra note 14, at 4. ↩
Benjy Steinberg, The Prosecutor and the Paramount Chief, Vimeo, at 5:51 (Mar. 26, 2015), available online (no longer available). ↩
Mirjan R. Damaška, What is the Point of International Criminal Justice?, 83 Chi.-Kent. L. Rev. 329, 347–49 (2008), available online. ↩
Christian De Vos & Betsy Apple, Securing Better Cooperation for Sexual and Gender-Based Crimes Begins by Redefining Cooperation, ICC Forum (Apr. 12, 2016), available online. ↩
Human Rights Watch, Comments on the ICC Office of the Prosecutor Draft Policy Paper on Case Selection and Prioritisation (May 3, 2016) [hereinafter Comments], available online. ↩
Charles P. Trumbull IV, The Victims of Victim Participation in International Criminal Proceedings, 29 Mich. J. Int’l L. 777 (2008), available online. ↩
Paul Williams & Michael P. Scharf, Peace with Justice? War Crimes and Accountability in the Former Yugoslavia 16–22 (Aug. 27, 2002), paywall. ↩
Yvonne M. Dutton, Bridging the Legitimacy Divide: The International Criminal Court’s Domestic Perception Challenge, 56 Colum. J. Transnat’l L. 71, 84–87 (Dec. 2017), available online.
(“Without significant and pervasive in-person outreach, the ICC will probably not be able to overcome any propaganda campaign government leaders wage against it to protect themselves and their cohort from being held accountable to the victims of violence.”). ↩
See Comments, supra note 25.
(“Prosecuting lower-ranking commanders is necessary to undercut a pervasive culture of impunity, achieve greater impact for victims, or for the implementation of an effective prosecutorial strategy in a particular country situation.”). ↩
deGuzman, supra note 1, at 276. ↩
Aperture of the Prosecutor: Reconciling the Concerns of the International Community with Political Influences
In selecting cases to investigate and prosecute under her Article 15 powers, there is contention about how wide the Prosecutor’s aperture should be.1 Under the Rome Statute, the ICC prosecutor must abide by an extensive list of rules and procedure designed to meet rigorous evidentiary standards of fairness and impartiality. However, her various investigations, especially the ones open in Africa, necessarily lead to political consequences. There is a question of whether the “concern of the international community as a whole” is an appropriate criterion for the prosecutor to consider when opening an investigation.2 How does this reconcile with the Office of the Prosecutor’s stance that political considerations never form a part of the Office’s decision making?3
In this comment, I argue that politics are mired in the development of customary international laws and norms. Case studies show that political context is taken into consideration in the development of the legal framework used in international courts, such as the ICC. Because it is rooted in the development of customary international law, consideration of the interests of the international community as a whole does not necessarily force the prosecutor to serve a political agenda. Rather, the nature in which political processes shape and complement the development of customary international laws and norms also shape the international community and complement the prosecutor’s efforts to bring justice to their vision of a better world.
II. Development of Law
A. Sources of International Law
Article 38 of the Statute of the International Court of Justice provides guidance on the sources of international law: it can consult international conventions, international customs, domestic legal systems and judicial proceedings.4 All of these sources are shaped by various sectors of the international community. Law is made at the international level when states enter into treaties with one another, or through their conduct that may form customary international law. International organizations make law through their delegated authorities (ex: the United Nations Security Council, the World Trade Organization) to make rules in designated and specific areas. International courts, like the ICC, make decisions that can form persuasive authority in the development of international jurisprudence. Further, individuals and non-state actors can generate “soft law,” which is not binding but guides behavior and may become binding through behaviors of actors until it ripens into customary international law.
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:
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:
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
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).
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. ↩
Id. at Preamble. ↩
See Office of the Prosecutor, Int’l Crim. Ct., available online (last visited Jun. 25, 2021). ↩
Statute of the International Court of Justice, 59 Stat. 103 (Jun. 26, 1945) Art. 38, available online. ↩
Patrick Dumberry, Incoherent and Ineffective: The Concept of Persistent Objector Revisited, 59 ICLQ 779 (Jul. 4, 2010), available online, doi. ↩
Michael Akehurst, Custom as a Source of International Law, 47 British Y.B. of Int’l L. 1 (Nov. 1, 1976), paywall, archived, doi. ↩
Alexander Orakhelashvili, Akehurst’s Modern Introduction to International Law (Dec. 3, 2018), paywall. ↩
David Luban, A Theory of Crimes Against Humanity, 29 Yale J. Int’l L. 85 (2004), available online, archived. ↩
Id. at 86. ↩
M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application (Jul. 2011), paywall, doi. ↩
Luban, supra note 8, at 88. ↩
Id. at 90. ↩
Id. at 93. ↩
Id. at 94. ↩
Id. at 95. ↩
Id. at 96. ↩
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. ↩
Rome Statute, supra note 1, Art. 7. ↩
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. ↩
Promise Inst. for Hum. Rts., (Still) Missing in Action: The International Crime of the Slave Trade, YouTube (Oct. 23, 2020), available online. ↩
Convention to Suppress the Slave Trade and Slavery, League of Nations, 60 LNTS 253 (Sep. 25, 1926), available online. ↩
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. ↩
General Order No. 100, Adjutant General’s Office (1863), available online. ↩
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. ↩
Office of the Prosecutor, ICC, Policy Paper on Sexual and Gender-Based Crimes (Jun. 2014), available online. ↩
Robert Jackson, The Global Covenant: Human Conduct in a World of States (Mar. 2003), paywall, doi. ↩
Tod Lindberg, Making Sense of the International Community, Council on Foreign Rel. (Jan. 2014), available online. ↩
Jackson, supra note 28. ↩
M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59 Law & Contemp. Probs. 63, 66 (1996), available online. ↩
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. ↩
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. ↩
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. ↩
An Expressivist Approach to Case Selection
As the Special Tribunal for Lebanon (STL) noted:
This is even more true for the International Criminal Court (ICC). Unlike the situation-specific tribunals before it, the ICC has broad jurisdiction over 123 states parties (and crimes committed by others on their territory),2 but limited resources.
This comment proposes the utilization of expressivist theories of international criminal justice in the process of case selection. Section I briefly discusses the need for selectivity at the ICC by addressing its limited resources and unique challenges. Section II introduces the current selection criteria based on the gravity of crimes and evaluates the Office of the Prosecutor’s (OTP) definition of gravity. Section III argues that expressivist theories of international criminal justice should aid case selection. This section further outlines which cases would be the cases to serve these expressivist aims and elaborates on positive consequences of using the proposed criteria.
I. The Need for Selectivity at the ICC
Some scholars argue that because of its limited resources, the ICC should focus on the most “severe” cases. But which cases count as the most “severe” are unclear as it could refer to the absolute scope and scale of the crimes or their relative gravity—the assessment of the impact of the crimes relative to their scope and scale—or even qualitative measures.3 Other scholars have noted that the OTP should have a wide aperture, as limiting jurisdiction through a higher test for gravity would prevent the Court from addressing situations where international crimes have taken place.4 However, because of the discrepancy between its broad jurisdiction and limited resources, the ICC does not have the capacity to pursue every case which would fall under its jurisdiction. Although the budget for the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) and the ICC are comparable,5 the ICC has a more difficult task in a number of respects.
First, previous tribunals, like the International Military Tribunal at Nuremberg or the ICTY, were aided by a system of domestic courts which prosecuted lesser crimes and lower level perpetrators so the international courts could focus on the gravest cases. If it was functioning correctly, the system of complementarity envisioned by the drafters of the Rome Statute would take the burden off the ICC in a similar manner. Under the principle of complementarity, domestic courts have primary jurisdiction over the prosecution of international crimes. States parties are encouraged to adopt the Rome Statute provisions into their domestic law and pursue these cases. However, not many have done so. Second, these previous tribunals had limited jurisdiction over one specific situation and, therefore, could try lower level perpetrators to build up cases against the highest level perpetrators. Cases were built upon each other and information gathered through investigations added to the cumulative knowledge about the situation. Lastly, in each of these situations, the conflict was largely over and the perpetrators were no longer in power. In cases at the ICC, some perpetrators are in power and some conflicts are ongoing, presenting further obstacles to investigations. Therefore, given these challenges, while the Courts jurisdiction should remain broad, the OTP needs to exercise some discretion in case selection in order to allocate the Court’s resources in ways that would make its work impactful.
II. The Gravity Threshold in Practice
In selecting cases, the OTP looks at the gravity of the crime, among other factors. Gravity is mentioned in two separate provisions in the Rome Statute. First, the assessment of sufficient gravity is a part of the test for the admissibility of a case pursuant to Article 17(1)(d), according to which, “the Court shall determine that a case is inadmissible where: […] (d) [t]he case is not of sufficient gravity to justify further action by the Court.” Second, an evaluation of sufficient gravity must be performed by the OTP during the preliminary examinations pursuant to Article 53(1)(b), and during the investigations as a condition to begin the actual prosecution pursuant to Article 53(2)(b). In its 2016 Policy Paper on Case Selection and Prioritization, the OTP noted that while the gravity requirement for admissibility under Article 17 is a de minimis standard, the standard of gravity for the purposes of case selection under Article 53 is a stricter standard.6
While the Rome Statute contains no clear definition of gravity, the OTP has relied on the following four factors in coming to a determination on sufficient gravity: scale,7 nature,8 manner of commission,9 and impact of the crimes.10,11 The Pre-Trial Chamber (PTC) has also approved these factors for the gravity analysis,12 however, the PTC and the OTP differ in their application of these factors. This difference in highlighted in the conflicting analyses of the OTP and the PTC regarding the Gaza-Flotilla situation. After the OTP decided not to open an investigation into the 2010 Israeli raid of the Humanitarian Aid Flotilla bound for Gaza Strip because “the total number of victims of the flotilla incident reached relatively limited proportions as compared […] to other cases,”13 the PTC insisted that the situation was sufficiently grave under the four factors and urged the OTP to reconsider. The PTC noted that “ten killings, 50–55 injuries, and possibly hundreds of instances of outrages upon personal dignity, or torture or inhumane treatment” is a factor “militating in favor of sufficient gravity, rather than the opposite.”14
The current definition of gravity and the factors used for its determination are comprehensive: they include both quantitative and qualitative measures and different sources of gravity (i.e. the number of victims, the type of victims, discriminatory intent, environmental devastation, etc.). However, this same inclusivity renders this definition useless. In theory, no one factor is more important and the analysis is done by looking at these factors as a whole. Therefore, without any relevant hierarchy, if all the factors are analyzed, there will always be a factor that would favor the selection of a case. But, the OTP has not relied on each factor equally in practice. At least in its earlier investigations, the OTP has primarily used a quantitative analysis of gravity, often concentrating on the scale of the crime through the number of victims.15 Kevin Jon Heller notes that a focus on the scale of crimes is insufficient and overly simplistic.16
III. Adjusting Case Selection Strategy
A. The Goals of International Criminal Justice
In order to make the ICC more consequential, case selection ought to be aligned with the goals of the institution. Generally, the goals of international criminal justice include the usually cited justifications for punishment under domestic criminal law—retribution, deterrence, incapacitation, rehabilitation, and expressivism—as well as some broader goals such as vindicating the rights of victims, creating an accurate historical record, and aiding post-conflict reconciliation.17 The important role of deterrence is evident in the Preamble of the Rome Statute, which asserts that the parties are “[d]etermined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.” However, there are two distinct issues with using deterrence as a guide for case selection. First, whether the ICC in particular, and international criminal justice in general, has a deterrent effect is much debated. An investigation into an active situation may even lead to an increase in criminal activity as perpetrators are “boxed in” yet unwilling to surrender.18 Thus, there is reason to believe that if any deterrent effect exists, it is rather minimal. Second, a focus on deterrence cannot justify any selectivity in cases since, for deterrence to be maximized, punishment must be swift and certain. In theory, to maximize any impact on deterrence, all cases involving international crimes should be prosecuted without distinction.
B. Expressivism as a Tool for Case Selection
Expressivism, however, can be a useful and practical aid in case selection because it takes the Courts limitations into account while maximizing its impact.19 Expressivist theories hold that there is value in the denunciation of criminal behavior through judicial processes that is separate from any measured deterrent effect.20 Case selection itself has expressivist meaning; they “contain messages about what types of conflicts, criminality, incidents, and perpetrators ought to be chosen for international investigation and prosecutions, and what prioritizations should be drawn.”21 Although all crimes are worthy of condemnation, the OTP should focus on highlighting under-represented categories of crimes. Prosecutors should use their discretion to attach particular stigma to crimes that are normalized in some environments. This approach would allow an institution, for instance, to “prioritize those crimes within its jurisdiction that are lesser known and where the educational impact can be maximized.”22
One of the critiques of this proposal is that “it detracts from the principled commitment to representative charges and may justify extremely narrow cases for educational purposes” and “prioritizes the didactic effect of global prevention over crime repression in the respective situational context.”23 However, these critiques rest on the assumption that the ICC does contribute to crime repression in the specific context, that prosecutions deter perpetrators. As previously addressed, this assumption is questionable and in some cases, the effect might actually be the opposite. Even so, the proposal is that the selection criteria prioritizes under-prosecuted cases, not that it solely focuses on them. The gravity threshold should shift towards expressionism but remain flexible to accommodate other cases where prosecutions would be especially impactful.
C. Collateral Effects
Additionally, the selection of under-prosecuted cases has some positive consequences which make it an even more desirable approach. The first of these is a deterrent effect. Arguably, there may be a stronger deterrent effect in prosecuting crimes which have not been prosecuted before then crimes that are usually prosecuted. The second consequence is the creation of new case law in areas where minimal case law exists.
Expressivism is not completely unrelated to deterrence as the two often overlap. For example, Cryer notes that this is the case with newer norms of international criminal law or norms which have historically failed to be enforced.24 The expressionist value in these citations is obvious—conduct, which has been tolerated, is now renounced. The deterrent value is specific to those who were unaware of the norm and those who were aware but thought the norm will not be enforced. These people will now know that this type of behavior carries the possibility of criminal sanctions which will hopefully decrease the likelihood of these crimes. The key difference is that the deterrent effect in expressivist theories is not the goal but a collateral effect. The emphasis is the “public acknowledgment of wrongdoing, educational rationales, prevention and the process of conveying messages.”25
2. Formation of Case Law
An important function of the ICC is creating international criminal law jurisprudence which may be used by future tribunals or even by domestic courts through their exercise of complementarity. This is essentially an extension of the expressivist function; rather than simply condemning behavior, the Court is explaining what type of behavior is condemnable and what factors make it so. Previous tribunals have stepped into the same role and made lasting contributions to the corpus of international criminal law. For instance, the ICTY developed case law on customary international humanitarian law, specifically on the law applicable to non-international armed conflicts. As a starting point, in Tadić, the ICTY defined non-international armed conflicts which have not been defined in common Article 3 to the Geneva Conventions as “protracted armed violence between government authorities and organized armed groups or between such groups within a State.”26 Similarly, the ICTR was the first to prosecute genocide in the Akayesu case and famously recognized that rape, in some circumstances, can constitute genocide.27 Melanie O’Brien acknowledged that the precedential effect of a case is something that should be considered during case selection, stating:
Some of the definitions of the four gravity factors currently considered by the OTP already reference cases which would serve expressivist aims. Indeed, the more recent case selection of the OTP shows greater degree of attention paid to qualitative factors. An example of a case that addresses under-prosecuted conduct, and thereby fits these expressivist aims, is the Al-Madi case. Al-Madi was convicted of the destruction of cultural heritage, considered a war crime under Article 8 of the Rome Statute, for the destruction of the Timbuktu Monuments, a UNESCO World Heritage site, in Mali.29 Another such case may be Ntaganda, which is unique for the recognition of rape and sexual slavery committed by members of a militia group against others within their own group.30
Arguably, some of the other current cases involving issues of immunities and the scope of jurisdiction would also fit under this proposed selection criteria. Cases involving head of state immunity, like the case against Sudanese President Omar al-Bashir, send a clear expressivist message that the leader will be held responsible for international crimes and cannot evade justice. This is a relatively new position as, previously, current leaders were usually shielded from prosecution through the application of personal immunity. Thus, through sending the message that neither functional nor personal immunities apply to heads of state, these cases would build new case law on the extent of immunities (and their limits) as well as potentially deter world leaders who previously were formerly shielded from the reach of international criminal law. In the same vein, cases involving new forms of jurisdiction—like the trans-border crime based jurisdiction applied to Myanmar or the jurisdiction asserted over non-state parties based on their alleged crimes on the territory of state parties—send a strong message regarding the ICC’s ideological commitment to hold powerful states responsible. Through the expression of this message, these cases have collateral effects on deterrence and precedent formation. Broadening the scope of jurisdiction beyond the traditional, these cases may serve for establishing jurisdiction in the future and regulate the behavior of non-state parties, at least to the extent that they affect state parties.
In conclusion, expressivism is the theory of international justice which should guide the OTP’s selection criteria because it helps bridge the gap between the Court’s limited resources and large mandate by explaining its contributions to international justice. The OTP should primarily focus on cases which have effectively been tolerated—such as crimes involving sexual and gender-based violence, environmental harms, or destruction of protected objects. A focus on these cases would not only result in a message that these crimes are condemned but also may deter the perpetrators of these crimes and build case law from which future international courts can proceed.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
The Prosecutor v. Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi & Assad Hassan Sabra, STL-11-01/PT/TC, Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal ¶ 87 (STL TC, Jul. 27, 2012), available online. ↩
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. 13, available online. ↩
See Ray Murphy, Gravity Issues and the International Criminal Court, 17 Crim. L. Forum 281, 282 (Dec. 2006), paywall, doi. ↩
See Mohamed M. El Zeidy, The Gravity Threshold Under the Statute of the International Criminal Court, 19 Crim. L. Forum 35 (Dec. 18, 2007), paywall, doi. ↩
The Comparative Cost of Justice at the ICC, Denv. J. Int’l L. & Pol’y (Mar. 26, 2012), available online.
(“The cumulative total of the ICC’s budgets over the initial decade is $900 million. By way of comparison, the International Criminal Tribunal for the Former Yugoslavia (ICTY) spent $695 million in its first ten years, and the International Criminal Tribunal for Rwanda (ICTR) spent about a $1 billion.”). ↩
Office of the Prosecutor, ICC, Policy Paper on Case Selection and Prioritisation ¶ 36 (Sep. 15, 2016), available online. ↩
Id. ¶ 37.
(“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.”). ↩
Id. ¶ 39.
(“The nature of the crimes refers to the specific factual elements of each offence such as killings, rapes, other sexual or gender-based crimes, crimes committed against or affecting children, persecution, or the imposition of conditions of life on a group calculated to bring about its destruction.”). ↩
Id. ¶ 40.
(“The manner of commission of the crimes may be assessed in light of, inter alia, the means employed to execute the crime, the extent to which the crimes were systematic or resulted from a plan or organised policy or otherwise resulted from the abuse of power or official capacity, the existence of elements of particular cruelty, including the vulnerability of the victims, any motives involving discrimination held by the direct perpetrators of the crimes, the use of rape and other sexual or gender-based violence or crimes committed by means of, or resulting in, the destruction of the environment or of protected objects.”). ↩
Id. ¶ 41.
(“The impact of the crimes may be assessed in light of, inter alia, the increased vulnerability of victims, the terror subsequently instilled, or the social, economic and environmental damage inflicted on the affected communities. In this context, the Office will give particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.”). ↩
Id. ¶ 37. ↩
The Prosecutor v. Bahar Idriss Abu Garda, ICC-02/05-02/09-243-Red, Decision on the Confirmation of Charges ¶ 31 (PTC, Feb. 8, 2010), available online; Situation in Georgia, ICC-01/15-12, Decision on the Prosecutor’s request for authorization of an investigation ¶ 51 (PTC I, Jan. 27, 2016), available online. ↩
Office of the Prosecutor, ICC, Situation on Registered Vessels of Comoros, Greece and Cambodia, Article 53(1) Report ¶ 138 (Nov. 6, 2014), available online. ↩
Id. ¶ 126.
See Marco Longobardo, Factors Relevant for the Assessment of Sufficient Gravity in the ICC Proceedings and the Elements of International Crimes, Questions of Int’l L. (Nov. 30, 2016), available online; see also Margaret M. deGuzman, What is the Gravity Threshold for an ICC Investigation? Lessons from the Pre-Trial Chamber Decision in the Comoros Situation, 19 ASIL Insights (Aug. 11, 2015), available online
(providing a thorough analysis of the difference between the PTC application and that of the OTP). ↩
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; but see Longobardo, supra note 14.
(“[T]he OTP mentioned that very small-scale episodes might cross the gravity threshold as long as the crimes allegedly committed are violent crimes of exceptionally serious gravity which have serious consequences not only for the victims, but also for the international community. As an example, the OTP mentioned the Abu Garda case, in which an isolated attack against peacekeepers that resulted in a smaller number of victims was considered of sufficient gravity nonetheless in light of the subsequent reduction of the African Union Mission in Sudan deployed therein.”). ↩
Heller, supra note 15, at 3
(recommending that the OTP shift focus from quantitative to the following qualitative factors when determining situational gravity: “(1) whether the situation involves crimes that were committed systematically, as the result of a plan or policy; (2) whether the situation involves crimes that cause “social alarm” in the international community; and (3) whether the situation involves crimes that were committed by States.”). ↩
Robert Cryer, Darryl Robinson & Sergey Vasiliev, An Introduction to International Criminal Law and Procedure 28–40 (Oct. 2, 2019), paywall, doi. ↩
Id. at 32. ↩
See Margaret M. deGuzman, Choosing to Prosecute: Expressive Selection at the International Criminal Court, 33 Mich. J. Int’l L. 265 (2012), available online. ↩
Cryer, Robinson & Vasiliev, supra note 17, at 36. ↩
Carsten Stahn, Justice as Message: Expressivist Foundations of International Criminal Justice 51–52 (2020), paywall, doi. ↩
Id. at 225. ↩
Cryer, Robinson & Vasiliev, supra note 17, at 36. ↩
Carsten Stahn, Justifying International Criminal Justice: Towards a Relational Approach 43 (Nov. 8, 2019), available online. ↩
The Prosecutor v. Dusko Tadić, IT-94-1-A, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction ¶ 70 (ICTY AC, Oct. 2, 1995), available online. ↩
The Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Judgement ¶ 731 (ICTR TC I, Sep. 2, 1998), available online. ↩
Melanie O’Brien, Prosecutorial Discretion as an Obstacle to Prosecution of United Nations Peacekeepers by the International Criminal Court: The Big Fish/Small Fish Debate and the Gravity Threshold, 10 J. Int’l Crim. Just. 525 (Jun. 28, 2012), paywall, archived, doi. ↩
The Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15, Judgment and Sentence ¶ 75–82 (TC VIII, Sep. 27, 2016), available online. ↩
The Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06, Judgment ¶ 949–86 (TC VI, Jul. 8, 2019), available online. ↩
From its inception, the International Criminal Court (ICC or the Court) has set out to address and adjudicate only those cases of most serious concern to the international community as a whole.1 Gravity is a crucial concept in the operation of the International Criminal Court. Despite its importance to the ICC, and, in particular, to the Office of the Prosecutor (OTP), gravity is left largely undefined by the Rome Statute.2 Furthermore, given the limited caselaw that has been developed within the ICC—particularly addressing the specific issue of gravity—the question as to what considerations the OTP should factor into its gravity calculus is very much still open.3 In addressing the question, the OTP has a number of important considerations to weigh when deciding on the proper gravity analysis. Before addressing these concerns and what they mean for the OTP’s gravity determinations, it is important to lay out the legal framework in which that gravity analysis occurs.
The ICC’s subject matter jurisdiction is limited to the crimes of genocide, crimes against humanity, war crimes, and the crime of aggression.4 Beyond these base-level subject-matter jurisdictional limits, the ICC must determine if a case is admissible under Article 17(1)(d) of the Rome Statute.5 That subsection, as cross-referenced in Article 53 of the Rome Statute, provides that a case is inadmissible if it is “not of sufficient gravity to justify further action by the Court.”6 While the Rome Statute fails to further elaborate on the meaning of this gravity requirement, the OTP and the Court have provided some guidance as to the practical operation of that threshold. The OTP has stated that it considers both quantitative and qualitative factors, including the “scale, nature, manner of commission and impact of the crimes.”7 The OTP has provided more specific factors that fall within these broad categories.
II. Current OTP Gravity Formulation
In clarifying the gravity standard, the OTP has stated that the nature of the crime refers to the specific factual elements of each offense.8 As for the manner of commission of the crimes, the OTP has identified, inter alia, the means used to commit the crime, the extent to which the crimes were systematic or committed as part of a plan, the abuse of power or official capacity, and the particular cruelty of the crime, including the vulnerability of the victims.9 The impact of the crimes includes considerations of the vulnerability of victims, the terror subsequently instilled by the crimes and the social, economic or environmental damage that resulted from the crimes.10
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:
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.
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
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).
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. ↩
SáCouto & Cleary, supra note 1. ↩
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. ↩
Rome Statute, supra note 1, at Articles 6–8 bis. ↩
Rome Statute, supra note 1, at Article 17. ↩
Office of the Prosecutor, ICC, Policy Paper on Case Selection and Prioritisation ¶ 37 (Sep. 15, 2016), available online. ↩
Id. ¶ 39. ↩
Id. ¶ 40. ↩
Id. ¶ 41. ↩
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. ↩
Letter from Luis Moreno-Ocampo, Chief Prosecutor, ICC, Regarding Situation in Iraq 9 (Feb. 9, 2006), available online. ↩
Policy Paper on Case Selection and Prioritisation, supra note 7, ¶ 38. ↩
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. ↩
Id. at 36. ↩
Ford, supra note 3, at 248. ↩
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. ↩
Id. at 62–64. ↩
Heller, supra note 11, at 14–15. ↩
Id.; Luis Moreno-Ocampo, ICC Prosecutor, Informal Meeting of Legal Advisors of Ministries of Foreign Affairs 9 (Oct. 24, 2005), available online. ↩
Heller, supra note 11, at 14. ↩
Id. at 16. ↩
Ford, supra note 3, at 248. ↩
SáCouto & Cleary, supra note 1, at 840. ↩
Ford, supra note 19, at 67. ↩
Id. at 65. ↩
Daniel Krcmaric, The Justice Dilemma: International Criminal Accountability, Mass Atrocities and Civil Conflict (2015) (Ph.D. dissertation, Duke University), available online. ↩
SáCouto & Cleary, supra note 1, at 843. ↩
Office of the Prosecutor, ICC, Draft Criteria for Selection of Situations and Cases 4 (Jun. 2006). ↩
Heller, supra note 11, at 3. ↩
SáCouto & Cleary, supra note 1, at 843. ↩
In Selecting Cases to Investigate and Prosecute, How Wide Should the Prosecutor’s Aperture Be?
The very first article of the Rome Statute establishing the ICC states that the Court “shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern.”1 Article 5 elaborates this point, stating: “[t]he jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole.”2 This phrase, “most serious crimes” is used throughout the Rome Statute, and emphasized in Article 17 and Article 53(1)(c), which both require the Prosecutor to examine the gravity of a situation when choosing to investigate.3 However, despite the fact that the Prosecutor treats gravity as “one of the most important criteria for selecting situations and cases”4 the term “gravity” is never explicitly defined in the Rome Statute. Accordingly, this gap opens the door to scholarly study into exactly what the definition of gravity should be. Some scholars argue that it should be kept narrow and limited, only allowing the Prosecutor to pursue crimes that occur on a large scale involving a minimum number of direct victims in order to make a larger impact with the Court’s limited resources. Other scholars argue that the definition should be broadened so that even a war crime that only has one victim can be prosecuted if it will have a meaningful impact, for example if it will set important precedent for the future.5 Both of these arguments put forth valid points, but the confliction in their conclusions arises from their differing objectives. One isn’t per se more correct than the other, because each of them is prioritizing a different function of the ICC. These competing interests make it difficult to anchor down one definition of gravity to be applied to all situations. Rather than being forced to choose between them to determine one objectively “correct” definition of gravity, the definition of gravity as used by the Prosecutor should be flexible to allow the Prosecutor broad discretion to incorporate the differing, yet equally important, goals of the ICC during case selection.
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:
number of victims,
number of persons killed,
severity of crimes,
systematicity of crimes,
nature of crimes,
impact of crimes,
role/position of the perpetrator, and
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
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.
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.
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:
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.
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:
the Prosecutor must look beyond simply the scale and systematicity of the crimes,
the Prosecutor must avoid instituting strict guidelines (or procedural correctness) in order to take into consideration the context surrounding each case,
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),
the Prosecutor must examine the victims’ vulnerability and their views on justice, and
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.
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).
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. ↩
Id. Article 5. ↩
Id. Article 17, Article 53(1)(c). ↩
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). ↩
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. ↩
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. ↩
Id. at 828. ↩
Id. at 829. ↩
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. ↩
SáCouto & Cleary, supra note 6, at 824. ↩
Letter from Luis Moreno-Ocampo, Chief Prosecutor, ICC, Regarding Situation in Iraq (Feb. 9, 2006), available online. ↩
Luis Moreno-Ocampo, ICC Prosecutor, Statement on the Uganda Arrest Warrants (Oct. 14, 2005), available online. ↩
See generally, Margaret M. deGuzman, Gravity and the Legitimacy of the International Criminal Court, 32 Fordham Int’l L.J. 1400 (2008), available online. ↩
SáCouto & Cleary, supra note 6, at 852. ↩
Office of the Prosecutor, ICC, Report on the Activities Performed During the First Three Years 6 (Sep. 12, 2006), available online. ↩
deGuzman, supra note 14, at 1441. ↩
Id. at 1442. ↩
Id. at 1447. ↩
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. ↩
SáCouto & Cleary, supra note 6, at 848. ↩
Office of the Prosecutor, ICC, Second Public Hearing: NGOs and Other Experts 7 (Sep. 26, 2006), available online. ↩
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. ↩
deGuzman, supra note 14, at 1447. ↩
Aptel, supra note 24, at 1364. ↩
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. ↩
O’Brien, supra note 5, at 536. ↩
Id. at 537. ↩
Greetings, just wanted to comment on one of the Articles that discussed how a Prosecutor should pick which case they decide to investigate. I believe whole heartedly that as a Criminal Investigator and Prosecutor you should choose your cases wisely, just as a fighter you must pick and choose your battles wisely.
The Function of the Gravity Analysis in the International Criminal Court’s Mandate to End Impunity
Article 17 of the Rome Statute provides that a case must be of sufficient gravity to justify action by the International Criminal Court (ICC).1 Thus, the Office of the Prosecutor (OTP) considers the gravity of crime in its case selection process. As outlined in its 2016 Policy Paper on Case Selection and Prioritisation (2016 Policy Paper), the OTP’s case selection criterion considers the “gravity of crime(s)” to refer to “the most serious crimes within a given situation that are of concern to the international community as a whole.”2 The OTP’s “gravity of crime(s)” case selection criterion is consistent with the Rome Statute which directs the Court to have jurisdiction over crimes described as such in Article 5 and in the Preamble.3 This comment considers which states or entities constitute the “international community” and how the OTP should assess whether the community is concerned “as a whole.”
This comment posits that the international community of the Rome Statute is not statist and comprises a wide range of entities and diverse perspectives which signal to the Court when there is concern “as a whole.” It argues that it is crucial that the Court consider those voices in its gravity analysis which is—and must be—distinct from a feasibility or utility analysis. The Court’s mission is to end impunity. This broad mission will neither be achieved in the short run nor in any single criminal proceeding. Along with reputational costs, the case selection process carries with it a signaling function that certain conduct deemed intolerable to the international community will never be exempt from scrutiny. Uniformly delivering this message is the only way to contribute towards ending impunity.
The remainder of this comment is organized as follows: Part II traces the jurisprudential meaning of the term “international community” and Part III considers examples where the OTP found that the international community was concerned “as a whole.” This comment concludes that the Court is limited to considering only those crimes under its jurisdiction, but that its interpretation of the gravity of one or more of those crimes is elastic and may evolve over time as the needs and concerns of the international community also evolve.
II. The Rome Statute’s International Community is More than an Association of the Entities it Encompasses
Margaret Thatcher once defined “the international community” as a tactful way to describe “the West.”4 This may have been the case at one time. However, the contribution of non-Western states to international law including the fight against colonialism and racism as well as the promotion of non-discriminatory social, economic, and cultural rights has certainly shaped the norms of the “the international community” into something more than a mere Western-ruled association.5 Although the precise definition of “the international community” is difficult to come by, it is apparent that it has a legal personality by the institutions that represent it. These institutions include, for example, the United Nations to which almost all countries are members of. They also include, no less, the International Criminal Court even though the Rome Statute has not similarly been ratified by all the world’s sovereign states. This is because the “international community” is more than the sum of its parts.
The relationship between the Security Council, the executive body of the U.N., and the ICC is testament to the permeance of the international community as a notion that is greater than the sum of its parts. Article 13 of the Rome Statute allows the Security Council to refer cases to the Prosecutor, which it has done at least twice.6 The ninth paragraph of the Rome Statute’s Preamble also recognizes the relationship of the Court with the United Nations system.7 And crimes that are “a manifest violation” of the Charter of the United Nations, such as the crime of aggression, are under the jurisdiction of the Court.8 In the International Court of Justice’s Lockerbie case, Judge Weeramantry compared the U.N. executive branch to that of the branches of government in domestic jurisdictions as bodies which, “perform their mission for the common benefit of the greater system of which they are part.”9 Thus, there is a legal recognition that the Court provides a venue for which the Security Council may refer controversies that are “of concern” to the international community it represents. This international community is, in the least, comprised of states that are larger in number than the current State Parties to the Rome Statute, namely the states in the United Nations system.
The concept of jus cogens allows us to take this analysis one step further. Article 53 of the Vienna Convention on the Law of Treaties discusses peremptory norms of “the international community of States as a whole.”10 Although the precise rules that have the status of a peremptory norm has been disputed over time, the existence of the concept of jus cogens is not disputed.11 Jus cogens is the flat prohibition of some rules which renders void any bilateral or multilateral agreement between states which breach those rules. Thus, the Vienna Convention recognizes the existence of some norms that have attained a status above the reach of the individual states within the international community and which constitute the values shared by all in that community.
The language in the Vienna Convention is very similar, but with an important difference, to the language in the fourth paragraph of the Preamble of the Rome Statute which the Prosecutor uses to decide whether the criteria in Article 17(1)(d) of the Rome Statute, which requires a case be of sufficient gravity to be admissible, has been met.12 The Rome Statute considers the most serious crimes “of concern to the international community as a whole.”13 By eliminating the term “States” from the community described in Article 53 of the Vienna Convention, the Rome Statute includes non-state entities in its account of the international community. Obviously, the United Nations is one of these non-state entities, however the phrase permits the inclusion of other international organizations, supranational organizations, probably even corporations, and most importantly civil society organizations.14 Thus, the international community realized in the Rome Statute reaches beyond its statist conception in the Vienna Convention to include a wider range of entities and, with that, a wider range of potential concerns.
There is a normative value inherent in the international community conceived by the Rome Statute. Indeed, even the recognition of jus cogens in the Vienna Convention arose out of the efforts of non-Western states, particularly developing countries who fought for its inclusion in the Convention.15 The identification of peremptory norms was therefore an acknowledgement of the existence of an international community that has a collective interest in values that are above and beyond the reach of the individual interests of unequal powers. This concept of community shows how the international order evolved and moved away from the Eurocentric Westphalian model, which in contrast, emphasized order because states were presumed first and foremost to be acting in their individual self-interest.16 Thus, jus cogens is a normative force which, by its existence, also levels power structures in the international order as it is the product of a call for non-discrimination in a community of states of unequal powers.
Despite laying the framework for jus cogens, the Vienna Convention did not list which rules were, in fact, peremptory norms. However, the Rome Statute’s function, in a sense, is to lay those rules out. The crime of genocide, crimes against humanity, war crimes, and the crime of aggression are jus cogens because they are within the Court’s jurisdiction in Article 5.17 The Preamble of the Rome Statute states that these crimes “shock the conscience of humanity.”18 The Rome Statute views violations of natural law which occur in these crimes as a threat to “the peace, security and well-being of the world.”19 Thus, the term “international community” in the Rome Statute places the human above all social constructs. International criminal law is perhaps one of the few areas in international law that can categorically define which norms are non-derogable by delineating crimes that are flatly abhorrent to the healthy conscience. In doing this, it establishes an international community that is broader than the sum of its parts, as diverse as has historically ever been, and still united by shared values.
III. Diverse Voices Speak to the International Community’s Concerns “as a Whole”
The same features that broaden the term “international community” in the Rome Statute may also narrow the scope of jus cogens norms which concern the international criminal law community “as a whole.” For example, in August 2019, the U.N. International Law Commission identified seven prohibitions that have the status of jus cogens.20 Among these, racial discrimination and the right of self-determination are not explicitly considered in the Rome Statute. This is because they involve violations of civil rights. Some countries, like Switzerland, have argued that the Commission’s list of peremptory norms don’t go far enough and have proposed piracy amongst other conduct to be included in the list.21 Even if the Commission were to take up these suggestions, it is likely that the crime of piracy would still not be considered of sufficient gravity under Article 17 of the Rome Statute because it neither shocks the human conscience nor threatens the peace, security, and well-being of the world. Thus, in one sense, the values that drive consensus in the international community may still not meet the stricter standards required for crimes to be considered of sufficient gravity to fall under the Court’s jurisdiction under the Rome Statute.
However, the practical implications of the broad meaning of international community in the Rome Statute can also have the effect to broaden the category of crimes which we consider to shock the conscience of humanity or threaten the well-being of the world. This, in turn, may widen the scope of jus cogens norms recognized by the international community at large. The situation can arise because of the presence of non-state actors, particularly non-governmental organizations (NGOs) and other civil society organizations, in the Rome Statute’s conception of the international community. For example, the statist international community’s jus cogens norms are arguably developed from the point of view of men.22 Gendered conceptions of jus cogens appear in the U.N. International Law Commission’s non-exhaustive list of peremptory norms as well.23 The Commission recognizes racial discrimination as prohibited conduct, but gender discrimination, which disproportionately hurts women and is the source of violence and systemic injustice against women, is absent from its non-exhaustive list, even though the governing treaty of the U.N. reaffirms “the equal rights of men and women” in its preamble.24 Similarly, while the crimes under the jurisdiction of the ICC are important and serious crimes; genocide, crimes against humanity, war crimes, and crimes of aggression threaten the safety and security of men and primarily voice male concerns. Women’s concerns, such as rape, are of a secondary status within these crimes when read as a whole. While it is certainly an achievement that sexual violence crimes are codified as crimes against humanity in Article 7(1)(g) of the Rome Statute,25 if the international community is comprised only of those voices of power who are overall less concerned or impacted when such crimes occur, their status would be diminished to a violation of a lesser wrong within a criminal proceeding. This, in turn, can impact whether a crime is considered of sufficient gravity to justify the allocation of resources and validate action by the Court. The expansive meaning of international community within the context of the Rome Statute brings into the fold the concerns of voices, such as female voices, which are typically on the margins in a male-dominated statist conception of the international community. Indeed, despite the codification of sexual violence crimes in the Rome Statute, the ICC was initially slow to bring indictments on these crimes.26 This changed when a Hague-based NGO, Women’s Initiatives for Gender Justice, which advocates for the rights of women affected by armed conflict, filed an amicus brief in 2009 raising concerns that the ICC Pre-Trial Chamber II narrowly characterized sexual violence in its decision on the charges of The Prosecutor v. Jean-Pierre Bemba Gombo which “diminish[ed] the effective access of victims to justice.”27 In 2012, Prosecutor Fatou Bensouda incorporated all of the NGOs demands.28 In 2016, Bemba was the first defendant to be convicted of rape at the ICC, although he was later acquitted. His conviction was a victory for civil society groups29 and his acquittal was a blow,30 but the fact remains that civil society played a central role in expressing that sex crimes, specifically the crime of rape, is a “most serious crime” of grave concern to the international community. This is likely to continue and eventually shape what kind of conduct we consider to shock humanity’s conscience and threaten the peace, security, and well-being of the world. Independently, and more broadly, the contribution of civil society to international opinio juris may shape what kind of norms are considered peremptory. The statist international community is concerned as a whole when the existing structures of power are concerned. In contrast, the OTP considers the diverse concerns of those on the opposite end of power: the victims of the most serious crimes. Thus, the ICC allows the voices of the least powerful to be heard in the international legal order and this, in turn, may alter the jus cogens norms that determine what crimes we consider the “most serious” and perhaps, in the future, which crimes we deem to be worthy of inclusion in the Rome Statute.
Other examples where the Prosecutor found that the international community was concerned as a whole support the proposition that the principles of equality and non-discrimination factor heavily on the determination. For several years, the ICC was predominately involved in investigations of African countries. Members of the international community, including African states and supranational organizations like the African Union, voiced their concerns about an African bias by the ICC. The Court took steps to increase outreach programs where the ICC had investigations running and the OTP issued its 2016 Policy Paper emphasizing the neutral considerations made in case selection as well as highlighting the fact that several of the ICC interventions at issue occurred at the request of the governments involved.31 The Prosecutor thus affirmed to a concerned community that the Court’s remit is global even though ICC intervention appeared to be narrowly focused.
In its decision overturning the Pre-Trial Chamber’s decision to deny the Prosecutor’s request to investigate alleged crimes related to Afghanistan, the Appeals Chamber also affirmed that the feasibility alone of an investigation does not determine whether an investigation should be pursued. The Appeals Chamber found that the Pre-Trial Chamber’s narrow consideration of the feasibility of an investigation is improper without considering the “gravity of the crimes and interests of the victims.”32 The Appeals Chamber, thereby, distinguished the gravity of crimes analysis from the feasibility analysis. This recent history shows that the Court is responding to concerns from the international community that justice cannot be achieved if it is pursued unequally or discriminatorily. Even if resources are better allocated to initiate and conclude investigations in one region of the world, it is unacceptable to pursue those if the cost will be the failure to initiate investigations in other regions of the world, whether or not they are likely to succeed. Thus, the gravity analysis does not consider the mere scale of the ICC’s potential impact but whether justice for prohibited conduct is evenly and fairly pursued. This makes sense because the Court’s mandate is to end impunity,33 which is necessarily broader than thoroughly punishing a single actor or even ending impunity in a single geographic location of the world.
Overall, the diverse states and entities that comprise the international community allows for a diverse expression of views to be considered in deciding the gravity of a crime. The OTP is, however, constricted to considering those crimes codified in the Rome Statute which are established jus cogens. Nevertheless, their interpretation can be broadened or narrowed based on the concerns of a host of actors in the Rome Statute’s conception of the international community. Here, non-governmental organizations can play a key role in including victims’ voices into the OTP’s gravity assessment. In parallel, the ICC’s goal to end impunity means it must consider the power structures that allow for impunity. The international community has voiced that it is not concerned as a whole that the Court catch only the low hanging fruit in its ambit. Thus, the Court’s actions have a signaling function. Its limited resources must be allocated to achieving justice in more than the narrow sense, that is to signal that no power exempts a person from scrutiny who engages in conduct that shocks humanity’s conscience or threatens the peace, security, and well-being of the world. This is challenging and may give the Court the appearance of being slow and clunky at times. However, this is what differentiates the International Criminal Court from domestic criminal courts. The former’s mandate is to end violations of natural law while the latter seeks to enforce the laws of the state.34 Domestic criminal courts, therefore, can more readily engage in an efficiency analysis when considering where leeway from the law is or ought to be appropriate. International criminal law is different. It is possible that the genocide of a small tribe of twenty is jus cogens, while the indiscriminate murder of forty is not. The former shocks the conscience of humanity and threatens the peace, security, and well-being of the world whereas the latter may have not. Thus, the Court’s gravity considerations are more often likely to be qualitative than quantitative. Sometimes, this will mean that justice won’t be speedily delivered in the short run. However, the Court’s mission to end impunity is a marathon, not a sprint.
The OTP’s gravity analysis is distinguishable from the feasibility analysis of ICC intervention. This is apparent in Article 17 of the Rome Statute which considers whether the case is of sufficient gravity as a standalone issue of admissibility.35 The proposition has also recently been confirmed by the ICC’s Appeals Chamber in its decision on the authorization of an investigation into the situation in Afghanistan. An interpretation of the gravity analysis as a standalone issue is also consistent with the legal and sociological meaning of “the international community concerned as a whole,” which is closely tied with compelling law and which embraces the voices of victims. The phrase appears throughout the Rome Statute to delineate which crimes are under the Court’s jurisdiction.36 Thus, the OTP’s Policy Paper on Case Selection and Prioritisation which adopts this phrase to refer to “gravity of crime(s)” is consistent with the Statute and appropriate.
The legal meaning of “international community” is closely related to and derived from the principle of compelling law in general international law. It is more than the individual entities in the community and more than their contractual associations. Flowing from compelling law are obligations that are of importance to all in the community and beyond the reach of any single entity in the community. In the context of international criminal law, these are obligations to not commit crimes which shock humanity’s conscience or threaten the peace, security, and well-being of the world.
Such crimes are delineated in the Rome Statute and the Court’s jurisdiction is limited to only the conduct described therein. Nevertheless, the diverse entities in the Rome Statue’s international community shape our understanding of the standards, principles, and values of which a breach thereof raises alarm and justifies action and the allocation of resources by the Court. This is where the gravity analysis is and must be elastic. If the OTP sidelines these voices in its gravity considerations, then it is not fulfilling its mandate. The Rome Statute does not direct the ICC to have the biggest impact on any given situation and the Court’s primary function is not to provide for victim reparations. The Court is directed to end impunity for the most serious crimes of concern to the international community as a whole. Due and equal consideration to the diverse voices of the community are thus key to the Court’s gravity analysis.
The Prosecutor is bound to face external constraints on its investigations such as noncooperation or evidence gathering challenges, however the gravity analysis is distinct from those considerations. In this sense, the OTP’s case selection decisions have value for more than just the outcome of any given investigation. Its case selection decisions carry a signaling function: crimes under its jurisdiction that the international community will not tolerate are never exempt from scrutiny. This is in line with its mandate and the only way it can make progress towards achieving its mission to end impunity.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
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. 17(1)(d), available online. ↩
See Office of the Prosecutor, ICC, Policy Paper on Case Selection and Prioritisation (Sep. 15, 2016), available online. ↩
See Rome Statute, supra note 1, Art. 5, Preamble ¶ 4. ↩
Dino Kritsiotis, Imagining the International Community, 13 EJIL 961, 991 (Sep. 2002), available online, doi.
([F]ormer British Prime Minister Margaret Thatcher admitted in her memoirs that “the West or, as we tactfully preferred to describe it, ‘the international community.’). ↩
See Bardo Fassbender, The United Nations Charter as Constitution of the International Community, 36 Colum. J. Transnat’l L. 529, 554 (1998), archived
(distinguishing between an “international society” which is a contractual association of states and an “international community” which is neither subordinated to a higher authority nor exclusively associated by agreement). ↩
Rome Statute, supra note 1, Art. 13(b). ↩
Id. Preamble ¶ 9. ↩
Id. Art. 5., Art. 8 bis; See also id. Preamble ¶ 7. ↩
Fassbender, supra note 5, at 576. ↩
Vienna Convention on the Law of Treaties, art. 53, May 23, 1969, 1155 U.N.T.S. 331, available online, archived. ↩
See Case Concerning Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), 1970 I.C.J. 3 ¶ 33 (Feb. 5, 1970), available online
(developing the doctrine of obligatio erga omnes which are defined as “obligations of a State towards the international community as a whole” and describes these obligations as those that are so important that all States have a legal interest in their protection).
See also Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States), 1986 I.C.J. 14 ¶ 190 (Jun. 27, 1986), available online
(referring to claims that the prohibition of the use of force has the status of jus cogens to support the validity of the principle in customary international law);
See generally M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59 Law & Contemp. Probs. 63, 72 (1996), available online, doi
(affirming that legal logic supports that obligatio erga omnes are derived from jus cogens since the “‘compelling law’ [of jus cogens] must necessarily engender [the] obligation ‘flowing to all’ [of obligatio erga omnes]”). ↩
Policy Paper on Case Selection and Prioritisation, supra note 2, at 12–13
(discussing the similarity between gravity of crime(s) as a case selection criterion and gravity as a factor for admissibility under Article 17(1)(d) of the Rome Statute). ↩
Rome Statute, supra note 1, at Preamble ¶ 4. ↩
See also James R. Crawford, Responsibility to the International Community as a Whole, 8 Ind. J. Global Legal Stud. 303, 312–14 (2001), available online
(arguing that even the phrase “the international community of States as a whole” cannot be understood as exclusive, whether or not this was intended). ↩
Pierre-Marie Dupuy, Le Droit International dans un Monde Pluricultural, 38 Rev. Int’l de Droit Comparé 583, 593–94 (Apr. 1986) (Fr.), available online, doi. ↩
See Bruno Simma & Andreas L. Paulus, The “International Community”: Facing the Challenge of Globalization, 9 EJIL 266, 270 (1998), available online, doi. ↩
Rome Statute, supra note 1, at Art. 5. ↩
Id. Preamble ¶ 2. ↩
Id. Preamble ¶ 3. ↩
International Law Commission, Chapter V: Peremptory Norms of General International Law (Jus Cogens), in Report on the Work of the Seventy-First Session, U.N. Doc. A/74/10, 146–47 (2019) [hereinafter ILC Report], available online. ↩
Press Release, G.A., Continuing International Law Commission Review, Sixth Committee Delegates Argue about Including Jus Cogens Settlement Dispute Mechanisms, Non-Exhaustive List, GA/L/3607 (Oct. 30, 2019), available online. ↩
See e.g., Hilary Charlesworth & Christine Chinkin, The Gender of Jus Cogens, 15 Hum. Rts. Q. 63 (1993), paywall, doi
(arguing that women are relegated to the periphery of communal values and that the doctrine of jus cogens has not responded to “massive evidence of injustice and aggression against women”). ↩
ILC Report, supra note 20. ↩
U.N. Charter, Preamble ¶ 2, available online. ↩
See e.g., Fionnuala Ní Aoláin, Gendered Harms and their Interface with International Criminal Law: Norms, Challenges and Domestication, 16 Int’l Feminist J. of Pol. 622 (Dec. 1, 2014), paywall, doi, earlier version archived
(studying modifications to domestic norms related to sexual violence, trafficking, stalking, and domestic violence in states that have ratified the Rome Statute). ↩
See Heidi Nichols Haddad, The International Criminal Court Was Established 20 Years Ago. Here’s How., Wash. Post, Jul. 17, 2018, available online. ↩
The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-466, Amicus Curiae Observations of the Women’s Initiatives for Gender Justice pursuant to Rule 103 of the Rules of Procedure and Evidence (PTC II, Jul. 31, 2009), available online. ↩
Haddad, supra note 26. ↩
See e.g., Owen Bowcott, Congo Politician Guilty in First ICC Trial to Focus on Rape as a War Crime, The Guardian, Mar. 21, 2016, available online
(quoting several NGOs praising the Bemba conviction for its importance in the achieving justice for victims of sexual violence). ↩
See e.g., Kerstin Bree Carlson, Bemba Acquittal Overturns Important Victory for Sexual Violence Victims, The Conversation (Jul. 15, 2018), available online. ↩
See Jeremy Sarkin, Reforming the International Criminal Court to Achieve Increased State Cooperation in Investigations and Prosecutions of International Crimes, 9 Int’l Hum. Rts. L. Rev. 27, 41 (May 24, 2020), paywall, doi; Alexandra Zavis & Robyn Dixon, Q&A: Only Africans Have Been Tried at the Court for the Worst Crimes on Earth, L.A. Times, Oct. 23, 2016, available online. ↩
Situation in the Islamic Republic of Afghanistan, ICC-02/17 OA4, Judgment on the appeal against the decision on the authorisation of an investigation into the situation in the Islamic Republic of Afghanistan ¶ 49 (AC, Mar. 5, 2020), available online. ↩
Rome Statute, supra note 1, at Preamble ¶ 5. ↩
(However, domestic criminal laws also differentiate the status of crimes by conduct that is more deserving of punishment for its greater moral reprehensibility, for example as between murder with malice aforethought and manslaughter). ↩
Rome Statute, supra note 1, at Art. 17(1)(d). ↩
Id. Art. 1, Art. 5. ↩
Gravity issue is very important both for the Office of the Prosecution (OTP) and the International Criminal Court (the Court or ICC) for the selection of ‘situations’ and ‘cases’. Through the Rome Statute ICC is mandated to try four crimes i.e. genocide, war crime, crimes against humanity, and the crime of aggression. All the four crimes are serious in nature. The prohibition of those four crimes had already attained the norms of jus cogens; because the nations of this world by their State-Practice and Opinio Juris had declared the non-derogable status of the rights that could be violated by those crimes. Should all the four crimes committed anywhere in the globe be entertained by the OTP? Or a discretion has been left to the OTP in relation to the selection of situations and cases? These questions invite further discussion and analyses on the interpretation of the relevant provisions of the Rome Statute including preamble, articles 1, 5, 17 and 53. And I would make an effort in order to find the true meaning of those provisions of the Rome Statue. I would state the principles of interpretation of international documents, first. Secondly, I would state the relevant provisions of the Rome Statute and the Policy. Thirdly, I would focus on the legal analyses on the gravity issue through the lens of the principles of interpretation. And finally, I would pull conclusion on the gravity issue focusing on some situations.
Principles of Interpretation
The gravity issue involves the interpretation of the certain provisions of the Rome Statute. And that is why it is desirable and expected that interpretation of those provisions may warrant the recourse to the established principles of interpretation.
The commonly acknowledged ‘Schools of Interpretation’ (Details: International Judicial Monitor, Published by the American Society of International Law and the International Judicial Academy, September 2006, Volume 1, Issue 4) and instructions of articles 31-32 of Vienna Convention on Law of Treaties (VCLT) are outlined below and it is suggested that the right one could be applied to interpret the relevant provisions of the Rome Statute involved in the gravity issue:
a. As per ‘Textualist’ interpretation begins with the words of a provision itself, as they are commonly understood. Article 31 of VCLT also calls for an examination of a text’s ‘ordinary meaning’.
b. Where the text is ambiguous or obscure or the plain meaning of the text leads to a manifestly absurd or unreasonable result, the ‘Intentionalist-Approach’ can be applied in order to reach a sensible result. And this approach has been reflected in the provision of VCLT which permits to analyze the negotiating history to reach a confirmed and sensible result.
c. ‘Teleological Approach’ seeks to effectuate the purpose of an agreement rather than slavishly following the text or attempting to divine the intent of the drafters. It is captured in the VCLT’s requirement that treaties be construed in light of their “object and purpose” and in view of “relevant rules of international law”
Interpretation of Treaties
It is respectfully submitted that ‘the VCLT’ could be applied as an aiding instrument for the interpretation-purposes. Since the customary rules had been incorporated into this instrument it may safely be applied to interpret a particular instrument without giving due regard to the ratification etc. issues.
Relevant Provisions of Rome Statute
The gravity issue involves the interpretation of the following provisions of the Rome Statute:
Let us interpret the article 1 first. According to this article ‘the Court’ would try only the persons for the most serious crimes of international concern. And it is not the only requirement. This article further reads that ‘and shall be complementary to national criminal jurisdictions.’
When we read article 1 in conjunction with paragraph 10 of the preamble we find that the Court’s jurisdiction shall be complementary to national criminal jurisdictions; paragraph 10 of the preamble clearly reads that ‘….emphasizing that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions’.
If we read article 1 in conjunction with article 17(1)(a), 17(1)(b) and 17(1)(d) we find that in order to be entertained by the Court both the ‘complementarity’ and ‘gravity’ requirements must be satisfied. Article 17(1) reads as follows - ‘having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court’.
When we read article 1 in conjunction with article 53(1) (b) and 53(1)(c) we find that ‘complementarity’ and ‘gravity’ requirements must be satisfied. Article 53(1)(b) and 53(1)(c) provides the following provisions: Article 53(1)The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether: (b) The case is or would be admissible under article 17; and (c) Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.
When we examine article 5 we find that the jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. It is true that all the four crimes mentioned in the Rome Statute are serious crimes in nature and attained the status of jus cogens. The question is – do all those crimes inherently, by virtue of their status, qualify the requirement by creating concern to the international community as a whole? Or in which situation a case can qualify this requirement? This very question has not been, expressly, answered by the Rome Statute. However, an attempt was made by a policy paper on case selection and prioritisation (2016). This policy paper sets out the considerations which guide the exercise of prosecutorial discretion in the selection and prioritisation of cases for investigation and prosecution. I quote the relevant provisions of the policy paper below:
After the above analyses I would pull a conclusion on the gravity issue. And in order to do so I would state three instances. And that would give an idea to the OTP where they should or should not entertain a matter within the jurisdiction.
Instance No. 1: The crimes committed are of the most serious crimes of concern to the international community as a whole. And where: (a) The case is not being investigated or prosecuted by a State which has jurisdiction over it, or the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, and the decision resulted from the unwillingness or inability of the State genuinely to prosecute.
In such a situation the OTP should entertain the matter; because unwillingness or inability of the State concerned to carry out the investigation or prosecution would itself deepen or sharpen the seriousness or concern to the international community as a whole and that would create the culture of impunity. It is respectfully submitted that in such a situation the OTP should entertain the matter and that would be in consistence with the spirit of the Rome Statute and the Policy. And further that would be in line with the SDGs.
Instance No. 2: The crimes committed are of the most serious crimes of concern to the international community as a whole. And where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, or the State is willing or able genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, and the decision resulted not from the unwillingness or inability of the State genuinely to prosecute.
In such a situation the OTP should not entertain the matter. It is respectfully submitted that in such a situation the domestic judicial measure would ensure the justice closing the mouth of impunity and that would be in consistence with the spirit of the Rome Statue and the Policy. And further that would be in line with the SDGs.
Instance No. 3: The crimes committed are of most serious crimes in nature. However, they fail to create concern to the international community as a whole.
In such a situation the OTP should, it is submitted, leave the matter for the domestic judicial measures.
Greetings, as I read the article of ICC Forums on Which Cases Should The ICC Prosecute and which cases that qualify or meet ICC criteria or requirements that should be investigated as an International Investigataive Cases. I believe that any crime against humanity such as hate crimes, racial motivated crimes, just to name a few should meet the criteria to be tried by any court in the land.
Why the Question of the Sufficiency of Gravity in the Rome Statute Remains Problematic
The requirement of “sufficient gravity”, as one of the bases to determine the admissibility threshold for cases under the jurisdiction of the International Criminal Court (ICC), is a matter that has generated considerable scholarly discourse. The concept of gravity threshold is incredibly critical at almost every stage of the proceedings under the Rome Statute, before the ICC. It has been argued that gravity is an important factor in determining which situations should be authorized by the court for investigation, which suspects should be arraigned before the court for trial, and what sentence should be imposed on the individuals convicted of violations of Rome Statute crimes. [Ford, S. The meaning of gravity at the international criminal court: A survey of attitudes about seriousness of mass atrocities 24 U.C. Davis J. Int’l L. & Pol’y 210 (2018).] More significantly, the gravity question plays a pivotal role in influencing the intervention by the ICC at the investigation and prosecution of Rome Statute crimes.
II. The Requirement of Gravity Under the Rome Statute
The requirement of sufficient gravity as provided under the Rome Statute, being a subjective standard, presents a problematic situation when it comes to determining, with exactitude, what facts amount to that standard. To illustrate this difficulty further, it will be necessary to start off by looking at the relevant provisions of the Rome Statute.
Article 17(1) of the Rome Statute, in dealing with admissibility requirements, provides thus:
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:
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.
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