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:

No matter how far victims might be from the Court, the ICC endeavours to reach out and engage with them and their communities. People most affected by the crimes have the right to understand, to participate in, and to have a sense of ownership in the justice process.17

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:

Disillusionment stemming from unfulfilled expectations and inconsistencies that spring from disorientation are harmful to any system of justice, and especially to an evolving one whose legitimacy in the communities affected by international crime is still as delicate as the wings of a butterfly.23

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:

As it was explained to the Court in Lubanga, intermediaries “were not supposed to know the objectives of the investigation team,” and their role was apparently “limited, in the sense that [they] were excluded from the decision-making process.” Pascal Kambale, a Congolese human rights lawyer, notes that local NGOs and activists “had more raw intelligence on the crimes than any other entity, [but] were deliberately sidelined and their invaluable expertise not fully integrated into the investigative process.” In a similar vein, Phil Clark has argued that, “Evidence from the ground […] suggests that the ICC has […] often perceived itself as the lead organisation to which all others are answerable.24

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.

V. Conclusion

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).

1. 1.

   Margaret M. deGuzman, Choosing to Prosecute: Expressive Selection at the International Criminal Court, 33 Mich. J. Int’l L. 265, 276 (2012), available online. ↩

2. 2.

   Office of the Prosecutor, ICC, Policy Paper on Victims Participation (Apr. 2010) [hereinafter Victims Participation Policy], available online. ↩

3. 3.

   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. ↩

4. 4.

   Id. Art. 68. ↩

5. 5.

   (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). ↩

6. 6.

   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. ↩

7. 7.

   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. ↩

8. 8.

   Interacting With Communities Affected by Crimes, Int’l Crim. Ct., available online (last visited Jun. 24, 2021). ↩

9. 9.

   HARDtalk, Zeinab Badawi Speaks to the Prosecutor at the International Criminal Court, Fatou Bensouda, BBC, Jul. 3, 2017, available online. ↩

10. 10.

    Mariana Pena, Victim Participation in International Criminal Proceedings ¶ 16, MPEPIL (Apr. 2019), paywall (last visited Jun. 24, 2021). ↩

11. 11.

    Id. ↩

12. 12.

    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. ↩

13. 13.

    Id. at 95–96. ↩

14. 14.

    REDRESS Victims’ Central Role in Fulfilling the ICC’s Mandate (Nov. 20, 2009) [hereinafter Victim’s Role], available online. ↩

15. 15.

    Victims, Int’l Crim. Ct., available online (last visited Jun. 24, 2021). ↩

16. 16.

    Victim’s Booklet, supra note 6. ↩

17. 17.

    Interacting With Communities Affected by Crimes, supra note 8. ↩

18. 18.

    Id. ↩

19. 19.

    Victim’s Role, supra note 14, at 4. ↩

20. 20.

    Id. ↩

21. 21.

    Benjy Steinberg, The Prosecutor and the Paramount Chief, Vimeo, at 5:51 (Mar. 26, 2015), available online (no longer available). ↩

22. 22.

    Id. ↩

23. 23.

    Mirjan R. Damaška, What is the Point of International Criminal Justice?, 83 Chi.-Kent. L. Rev. 329, 347–49 (2008), available online. ↩

24. 24.

    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. ↩

25. 25.

    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. ↩

26. 26.

    Charles P. Trumbull IV, The Victims of Victim Participation in International Criminal Proceedings, 29 Mich. J. Int’l L. 777 (2008), available online. ↩

27. 27.

    Paul Williams & Michael P. Scharf, Peace with Justice? War Crimes and Accountability in the Former Yugoslavia 16–22 (Aug. 27, 2002), paywall. ↩

28. 28.

    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.”). ↩

29. 29.

    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.”). ↩

30. 30.

    deGuzman, supra note 1, at 276. ↩

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.

1. Deterrence

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:

[A] single incident of war crime should be enough for a prosecution, and in fact such a case may have an unforeseen impact on the formulation of international criminal law precedent28

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.

Conclusion

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).

1. 1.

   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. ↩

2. 2.

   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. ↩

3. 3.

   See Ray Murphy, Gravity Issues and the International Criminal Court, 17 Crim. L. Forum 281, 282 (Dec. 2006), paywall, doi. ↩

4. 4.

   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. ↩

5. 5.

   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.”). ↩

6. 6.

   Office of the Prosecutor, ICC, Policy Paper on Case Selection and Prioritisation ¶ 36 (Sep. 15, 2016), available online. ↩

7. 7.

   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.”). ↩

8. 8.

   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.”). ↩

9. 9.

   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.”). ↩

10. 10.

    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.”). ↩

11. 11.

    Id. ¶ 37. ↩

12. 12.

    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. ↩

13. 13.

    Office of the Prosecutor, ICC, Situation on Registered Vessels of Comoros, Greece and Cambodia, Article 53(1) Report ¶ 138 (Nov. 6, 2014), available online. ↩

14. 14.

    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). ↩

15. 15.

    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.”). ↩

16. 16.

    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.”). ↩

17. 17.

    Robert Cryer, Darryl Robinson & Sergey Vasiliev, An Introduction to International Criminal Law and Procedure 28–40 (Oct. 2, 2019), paywall, doi. ↩

18. 18.

    Id. at 32. ↩

19. 19.

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

20. 20.

    Cryer, Robinson & Vasiliev, supra note 17, at 36. ↩

21. 21.

    Carsten Stahn, Justice as Message: Expressivist Foundations of International Criminal Justice 51–52 (2020), paywall, doi. ↩

22. 22.

    Id. at 225. ↩

23. 23.

    Id. ↩

24. 24.

    Cryer, Robinson & Vasiliev, supra note 17, at 36. ↩

25. 25.

    Carsten Stahn, Justifying International Criminal Justice: Towards a Relational Approach 43 (Nov. 8, 2019), available online. ↩

26. 26.

    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. ↩

27. 27.

    The Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Judgement ¶ 731 (ICTR TC I, Sep. 2, 1998), available online. ↩

28. 28.

    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. ↩

29. 29.

    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. ↩

30. 30.

    The Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06, Judgment ¶ 949–86 (TC VI, Jul. 8, 2019), available online. ↩

II. Current Uses of Gravity Under the ICC

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

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

1. number of victims,

2. number of persons killed,

3. severity of crimes,

4. systematicity of crimes,

5. nature of crimes,

6. impact of crimes,

7. role/position of the perpetrator, and

8. intent of the perpetrator.11

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

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

III. How Flexible Should the Definition of Gravity Be

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

A. Case Studies of Competing Interests

1. Legitimacy

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

2. Deterrence

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

3. Justice

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

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

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

4. Other Considerations

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

IV. Recommendations

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

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

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

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

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

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

V. Conclusion

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

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

1. 1.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 1, available online. ↩

2. 2.

   Id. Article 5. ↩

3. 3.

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

4. 4.

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

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

5. 5.

   Melanie O’Brien, Prosecutorial Discretion as an Obstacle to Prosecution of United Nations Peacekeepers by the International Criminal Court: The Big Fish/Small Fish Debate and the Gravity Threshold, 10 J. Int’l Crim. Just. 525, 536 (Jun. 28, 2012), paywall, archived, doi. ↩

6. 6.

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

7. 7.

   Id. ↩

8. 8.

   Id. at 828. ↩

9. 9.

   Id. at 829. ↩

10. 10.

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

11. 11.

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

12. 12.

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

13. 13.

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

14. 14.

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

15. 15.

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

16. 16.

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

17. 17.

    deGuzman, supra note 14, at 1441. ↩

18. 18.

    Id. ↩

19. 19.

    Id. at 1442. ↩

20. 20.

    Id. at 1447. ↩

21. 21.

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

22. 22.

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

23. 23.

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

24. 24.

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

25. 25.

    deGuzman, supra note 14, at 1447. ↩

26. 26.

    Aptel, supra note 24, at 1364. ↩

27. 27.

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

28. 28.

    O’Brien, supra note 5, at 536. ↩

29. 29.

    Id. at 537. ↩

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.

IV. Conclusion

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).

1. 1.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 17(1)(d), available online. ↩

2. 2.

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

3. 3.

   See Rome Statute, supra note 1, Art. 5, Preamble ¶ 4. ↩

4. 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.’). ↩

5. 5.

   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). ↩

6. 6.

   Rome Statute, supra note 1, Art. 13(b). ↩

7. 7.

   Id. Preamble ¶ 9. ↩

8. 8.

   Id. Art. 5., Art. 8 bis; See also id. Preamble ¶ 7. ↩

9. 9.

   Fassbender, supra note 5, at 576. ↩

10. 10.

    Vienna Convention on the Law of Treaties, art. 53, May 23, 1969, 1155 U.N.T.S. 331, available online, archived. ↩

11. 11.

    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]”). ↩

12. 12.

    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). ↩

13. 13.

    Rome Statute, supra note 1, at Preamble ¶ 4. ↩

14. 14.

    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). ↩

15. 15.

    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. ↩

16. 16.

    See Bruno Simma & Andreas L. Paulus, The “International Community”: Facing the Challenge of Globalization, 9 EJIL 266, 270 (1998), available online, doi. ↩

17. 17.

    Rome Statute, supra note 1, at Art. 5. ↩

18. 18.

    Id. Preamble ¶ 2. ↩

19. 19.

    Id. Preamble ¶ 3. ↩

20. 20.

    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. ↩

21. 21.

    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. ↩

22. 22.

    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”). ↩

23. 23.

    ILC Report, supra note 20. ↩

24. 24.

    U.N. Charter, Preamble ¶ 2, available online. ↩

25. 25.

    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). ↩

26. 26.

    See Heidi Nichols Haddad, The International Criminal Court Was Established 20 Years Ago. Here’s How., Wash. Post, Jul. 17, 2018, available online. ↩

27. 27.

    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. ↩

28. 28.

    Haddad, supra note 26. ↩

29. 29.

    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). ↩

30. 30.

    See e.g., Kerstin Bree Carlson, Bemba Acquittal Overturns Important Victory for Sexual Violence Victims, The Conversation (Jul. 15, 2018), available online. ↩

31. 31.

    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. ↩

32. 32.

    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. ↩

33. 33.

    Rome Statute, supra note 1, at Preamble ¶ 5. ↩

34. 34.

    (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). ↩

35. 35.

    Rome Statute, supra note 1, at Art. 17(1)(d). ↩

36. 36.

    Id. Art. 1, Art. 5. ↩

I. Interests Shaping the ICC

Despite affirming its objectivity with respect to the Court’s practices and procedures, the ICC has been singled out by critics who claim it is a political organization.5 Possible explanations for this characterization are the institutional and diplomatic limits the ICC operates under. One limit of the Court is that it is funded primarily by member parties and voluntary contributions from the international community.6 The ICC’s very existence depends on the commitment and appeasement of States Parties to the Rome Statute, namely those with more financial resources. Another limit of the ICC is its jurisdictional reach. The Court can only prosecute individuals from States Parties or individuals who have directed atrocities within the jurisdiction of those countries.7 The latter jurisdictional rule has proven to be quite controversial and has garnered sharp criticism from powerful entities like the United States and the United Kingdom (U.K.).8 It has also resulted in the ICC refusing to pursue situations of high gravity that could arguably fall within its jurisdiction but will likely cause pushback due to the principle of complementarity.

Lastly, the ICC is concerned with international perception as a means of maintaining legitimacy. The Court is only as powerful as States Parties perceive it to be and therefore has an interest in being perceived to operate in an objective manner. The success of this goal has been measured against criticism regarding potentially biased case selection.9 Coincidentally, timely changes have been made by the Court in a perceived effort to maintain international judicial order.

The intersection of limited resources, applicability, and appeasement necessarily shape the working structure of the ICC and raise valid concerns as to whether the Court is acting politically. This concern becomes heightened when taking into account existing vagueness in what meets the gravity threshold for case selection and trial. Some ambiguity in laws and treaties are essential for legal interpretation and make way for a fair judicial process. Accused parties must be afforded the opportunity to challenge the accusations made toward them and ambiguities in the law are the means through which they can argue their innocence. However, ambiguities in the Rome Statute are a greater advantage to the ICC because it allows the Court flexibility to navigate international pressures through ambiguous application of the gravity principle.

In 2018 for example, the Court made a sharp change by beginning to investigate non-African countries after it was accused of bias.10 The ICC was accused of inappropriately targeting African countries, which compose the entirety of its convictions.11 The widespread criticism was framed in comparison to many atrocities taking place at the time in Venezuela, Palestine, Colombia, and Afghanistan that were not being considered by the Court.12 Burundi, Gambia, and South Africa threatened to withdraw as States Parties and Burundi ultimately did.13 Shortly after, the ICC made swift changes that included electing Fatou Bensouda from Gambia as the next ICC prosecutor and diversifying the investigations selected. Although the Court has rejected that an African bias existed, its actions signal a timely change in response to criticism from the international community.

The ICC then began investigating Afghanistan, Venezuela, and Palestine, which requires that each situation meet the gravity threshold for selection. Allegations of crimes including rape, torture, political detentions, and extrajudicial executions under President Nicolás Maduro existed while the Court chose to investigate and prosecute predominantly African leaders. The nature of the crimes, their scale, and impact are not markedly different under the current investigation, but the motivations of the ICC are. The Court was facing significant pressure to strengthen its legitimacy to the world especially after the threat of withdrawal from several African States Parties. International perception and possibly funding concerns contextualize the Court’s decision to take on different types of cases.

The means by which the ICC was able to make these changes is through ambiguities in what constitutes gravity. The issue is that the Rome Statute notably does not define what constitutes gravity, and instead the OTP uses a combination of scale, nature, manner, and impact of the crimes for that assessment.14 The questions remain: How many deaths amount to the required scale?; In what manner should a political detention carried out for a war crimes charge?; Is continued taunting enough to count as an act of humiliation that is “outrageous upon personal dignity?”15 Limited successful convictions provide little guidance to answer these questions and the Court’s perceived continued effort toward self-preservation and international legitimacy pave the way for politicized decision making. The following sections illustrate in greater detail interpretations of gravity, wide-spread, and systematic that have resulted in what can be perceived as political choices.

II. Gravity in Case Selection

In alignment with the goals of the ICC, the OTP prioritizes the selection of the most serious cases based on gravity.16 The OTP determines gravity by using four factors: 1) scale of the crimes; 2) their nature; 3) the manner of their commission; and 4) their impact.17 Considerations that can flesh out these factors are the number of people affected and the callousness of the crime. However, because the ICC functions with limited resources, it is unable to investigate and prosecute cases solely on the basis of meeting the criteria for gravity at a superficial level.18 The Court focuses on the most serious crimes within a given situation that concern the international community as a whole—the implication being that the ICC will mainly use resources on the most egregious situations. Even with the added clarity of the OTP’s factors for consideration, there is still significant flexibility with how the Court decides what is a crime worthy of its resources. As evidenced by cases that reveal a sharp change in the application of gravity, the vague nature of the gravity principle avails the Court to make political choices.

A. Mali: Sufficient Gravity for Case Selection

In 2016 for instance, the ICC completed its trial of Ahmad Al Faqi Al Mahdi and convicted him for directing attacks that led to the destruction of ten historical and religious monuments in Timbuktu pursuant to Article 25(3)(a) of the Rome Statute.19 The destroyed shrines included the 16th century mausoleum of Sidi Mahmoud and the shrine of Sidi Ahmed ar-Raqqad who wrote about traditional pharmacology in the 17th century.20 Mahdi’s leadership also led to the destruction of a door to the 15th century mosque of the patron saint Sidi Yahia. It was the belief of locals that opening the door would commence the end of the world.21 The shrines and mosque were smashed into by jihadist with the intention of destroying them and of curtailing the influence of the Sufi-influenced form of Islam. Mahdi was an alleged member of Ansar Eddine, a movement associated with the terrorist organization Al Qaeda.22 According to his public statements, Mahdi was also head of Hisbah, and it was part of his mission to combat all acts he viewed to interfere with the precepts of Islam.23 Mahdi’s actions under Rome Statute Article 8(2)(e)(iv) constitute war crimes and require a “plan or policy […] or of a large-scale commission” of a crime.24 These facts contribute to both the selection of the case and the criteria to convict Mahdi. At a surface level, the atrocities committed under the direction of Mahdi constitute war crimes. The desecration of ten religious historical sites can be considered large-scale, and, by his own admission, the actions were part of a policy to narrow the influence of a competing religious faction.

Objectively, a third party could interpret “large-scale” to be the number of targeted religious sites. Ten religious monuments were successfully attacked and destroyed. Another possible framework for scale could tie into the impact prong of the factors contemplated by the OTP. Because the crime targeted valued religious sites of a particular Islamic group, the scale or gravity can be interpreted as a crime against a population on the basis of religion.

The argument can also be made that the Sufi-influenced followers of Islam were spiritually and psychologically affected by the attacks even if they were not physically present, increasing the number and scale for purposes of gravity. The nature and manner of the attack can also be assessed in terms of manner of commission. The monuments were smashed by the perpetrators of the crime, destroying sacred religious artifacts. The act of physically smashing of the monuments is another consideration for the Office.

However, the OTP’s decision to pursue this case in the first place becomes more political when the situation is contextualized. The OTP’s limited resources make it necessary for the ICC to prioritize only the most serious of crimes. This means that the OTP determined that desecration of ten religious monuments and its effects on a religious population, serves the interests of justice and merits the international weight of the ICC more than another situation. The OTP focused on the spiritual impact of the attack on the Sufi-influenced Islam to constitute “large-scale” as opposed to the number of religious historical artifacts affected.25 The facts and application of this case are a stark contrast to previous cases taken by the ICC that directly relate to mass murder, rape, and the enlistment of children into armed forces. These crimes were still being perpetrated around the world, yet the OTP pursued Mahdi.

The OTP in this case made the implicit point that religious matters are not only worthy of review despite limited resources, they can also constitute a greater degree of seriousness than other crimes implicating bodily integrity. The question becomes what metrics are being used to decide that religious attacks require the Court’s intervention over crimes of murder and rape that continue to be referred to the Court?26 The answer to this question is unclear because the metrics are ambiguous.

There is nothing in the Rome Statute or the ICC that declares one crime to be more serious than another. Instead, the decision is based on the needs of the international community. Although social hostilities related to religion increased across 198 countries at the time of Mahdi’s crimes in 2012, they decreased in the following years.27 According to the Pew Research Center, by the time the ICC issued an arrest warrant for Mahdi in 2015, social hostilities related to religion decreased to 27 countries from an original 33 in 2012.28 Instead, what increased were religious terrorist attacks that resulted in the deaths of fifty or more people. Assessed under the Pew Research data, the more serious harms affecting the international community numerically were those resulting in the mass death of innocent civilians. However, the ICC chose a different calculous in its interpretation of gravity, valuing the right of religious expression. The gravity of the crime surpassed that of other cases because it affected the right to access and enjoy cultural heritage.

The decision to take on Mahdi’s case and convict him can reasonably be attributed at least in part to a conscious shift in the politics of the Court. Mahdi’s conviction was the first international trial focusing on the destruction of historical and religious monuments.29 What this likely signaled is a change in the ICC’s position to prioritize the protection of religious expression and cultural sites. By doing so, the Court diversified the cases in its record and made a declaration to the international community that other crimes within the Rome Statute are necessary to prosecute. They demonstrated that crimes of desecrating religious monuments are just as important and, in some circumstances, more important than other types of crimes affecting bodily autonomy. This shift was made possible through the ambiguous language of the Rome Statute.

B. U.K.–Iraq: From Insufficient to Sufficient Gravity for Case Selection

The U.K. and Iraq situation was reviewed by the OTP in 2006 and 2014. Both preliminary investigations resulted in closing out the cases based on insufficient gravity and complementarity respectively.30 The issue of gravity however was not overwhelmingly different between the two periods, though it was more detailed. The result was that U.K. forces involved in war crimes were not prosecuted by the ICC. Instead, they were prosecuted internally by the Royal Military Police Special Investigation’s Branch.31 The investigations were widely criticized. Notably no senior British officials have been found criminally accountable to date despite the OTP concluding that sufficient evidence exists amounting to war crimes.32 The fact that the OTP did not investigate the U.K.–Iraq situation further in 2006, resulted in critiques from the international community expressing that a false sense of accountability exists and that there is a double standard for who gets prosecuted by the ICC.33

In February 2006, the OTP closed a preliminary investigation into possible war crimes committed by U.K. military forces between March and May 2003.34 One of the alleged war crimes was the knowingly and clearly excessive attacks on civilians under Rome Statute Article 8(2)(b)(iv).35 The Iraq Body Count organization estimated that 6,900 civilians were killed between the period in question and other sources estimate that count to be much higher.36 The OTP found these grounds insufficient because evidence did not clearly point to the intentional killing of civilians. There were also allegations of willful killings and inhuman treatment of civilians pursuant to Rome Statute Articles 8(2)(a)(i) and 8(2)(a)(ii). On these allegations, the OTP did find a reasonable basis for concluding that between four to twelve victims were subjected to willful killing or inhuman treatment. These facts do not differ significantly to the 2020 findings detailing that at least seven people were subjected to willful killing from April 2003 to September 2003 and that those actions met the gravity threshold.37 The main difference in the evidence assessed for the 2020 final report are the details of the attacks.

On December 9, 2020 the then OTP Fatou Bensouda closed a preliminary examination into an inquiry on alleged crimes committed by U.K. forces between 2003 to 2009 during the Iraq War.38 The alleged crimes committed by U.K. soldiers include: willful killing, torture, inhuman treatment, outrages upon personal dignity, as well as rape and or other forms of sexual violence pursuant to Article 8 of the Rome Statute.39 In her assessment Bensouda reviewed the crimes in the context of scale, nature, manner of commission, and the impact. Despite affirming that the acts of the British armed forces constituted grave war crimes, the case was not pursued by the Office on the basis of complementarity. The final report states that U.K. authorities were not found to be inactive in pursuing criminal charges.40 The OTP’s refusal to take on the case resulted in significant backlash from the international community that condemned the Court for imposing a double standard in its application of law.41

The 2020 findings were more detailed and implicated slightly more people than 2006 finding of insufficient gravity. According to available information, between March 2003 and July 2009, U.K. armed forces subjected fifty-four detainees to inhuman treatment and torture pursuant to Rome Statute Articles 8(2)(a)(ii) and 8(2)(c)(i).42 The Office found that at least seven people were victims of unlawful killings constituting war crimes. Detainees were also subjected to physical assault, sexual violence, humiliation, hooding, sleep deprivation, food depravation, and forced “stress positioning.” Stress positioning is intended to induce muscle fatigue by requiring detainees to squat with their hands placed on their head for extended periods of time.

One specific example is that of seven Iraqi victims who were detained on the suspicion of looting Camp Breadbasket on May 2003.43 They were forced to simulate oral and anal sex while one man was tied up in a cargo net and then suspended from a forklift truck. The report affirmed that there are no circumstances whatsoever where a State Party may be justified in torture within its jurisdiction. The OTP referred to the manner of commission as “particularly cruel, prolonged, and severe,” noting the killing of Baha Mousa who was hooded for 24 hours and suffered at least ninety-three injuries before succumbing to death.44 Gravity was also satisfied through an impact analysis where the OTP considered short-term and long-term impacts on the physical and mental health of the victims of British war crimes. In addition to permanent physical injuries such as fractured teeth, scars, and the inability to have children, survivors of British torture were also left with post-traumatic stress disorder, amounting to serious impact.

When comparing the details of the 2006 and 2020 investigation, it becomes clear that the sheer numbers were not at face value insurmountably different for a gravity assessment. The four to twelve people who were found to be subjected to inhuman treatment and willful killing in 2006 are not a sharp contrast to the confirmed seven people were found to have been willfully killed by U.K. armed forces in 2020. Moreover, the fifty-four total people who were tortured by British forces do not compare in terms of numbers to the thousands of willful killings committed in other conflicts in States such as Northern Uganda, the Democratic Republic of Congo and Darfur. Yet, that was a justification for not pursuing the U.K.–Iraq conflict in 2006.45 The wholly different application of gravity between two prosecutors raises questions about discretion and political interpretation of the Rome Statute. Although gravity can be colored by the additional evidence presented in 2020, the OTP of 2006 would have likely reached the same conclusion had the Office investigated further. The Office would have been able to investigate the gravity of the inhuman acts that took place in the aftermath of Camp Breadbasket in May 2003.

The refusal of the OTP to continue investigating the U.K.–Iraq conflict after 2020 has led critics to claim that the ICC operates under a double standard.46 They essentially claim that States with a political stronghold are not required to face justice in the same way that States with less leverage do. This is in part because no senior British military or political figures have been charged for willfully disregarding or ordering abuses despite there being evidence of egregious war crimes. Moreover, only one lower ranking solder has faced criminal accountability because many of the cases being investigated domestically have resulted in settlements.47 The prosecutor’s 2020 decision also follows insistence by the U.K. to limit the Court’s budget, a restriction that would impact the Court’s already limited resources. Although there is no definitive evidence that these matters are causally related, the ambiguity of the Rome Statute as well as the Court’s existing limitations make it possible for the OTP and the Court to make decisions that ostensibly favor more powerful States.

III. Gravity in Conviction

The cases that have resulted in successful convictions at the ICC vary in terms of subject matter and gravity. Although the cases fall within crimes against humanity or war crimes, their varied nature has allowed for a flexible interpretation of the Rome Statute for trial and sentencing. During trial the Court reviews whether the defendant is guilty beyond a reasonable doubt of the charges presented against them. This includes whether evidence suffices to convict someone of committing a “widespread or systematic attack” under Rome Statute Article 7 or whether a “large-scale commission” of a “plan or policy” has been satisfied pursuant to its Article 8.48 Because there are such few convictions none of which are for genocide under Article 6, there is a limited understanding of what merits a successful conviction for genocide.

Cases that have successfully led to convictions at the ICC include the conviction of Germain Katanga in 2014, Thomas Lubanga Dyilo in 2014, and Jean-Pierre Bemba in 2016. Together these cases encompass crimes against humanity and war crimes. The threshold for what constituted a widespread or systematic attack for the conviction of Katanga was relatively high numerically from what constituted a large-scale commission for the conviction of Dyilo and Bemba.

Katanga was found guilty as an accessory of one count of crime against humanity and four counts of war crimes for the attacks committed against the people of Bogoro.49 The OTP at the time framed the events as widespread and systematic by encompassing a series of attacks led by Lendu and Ngiti militias guided under the leadership of Katanga.50 Ngiti militas hunted and killed approximately 1,200 Hema civilians. On February 2003, Katange and Mathieu Ngudjolo Chui’s militia groups composed of adults and children soldiers killed more than 200 civilians in just a few hours, raping women, girls, and the elderly. They also looted the village and forced women to become sexual slaves. As a result of the attacks by Katanga’s militia groups and their allies, 8,000 civilians were killed and more than 600,000 were forced to flee their homes.51 The attack was purposely and knowingly committed under Katanga’s leadership. He boasted that the events were carried out to take revenge on massacres perpetrated by the Hemas in a different village.52

In contrast, the victims of Bemba and Dyilo’s crimes consisted of hundreds of people as opposed to thousands. Before his acquittal in 2018, Bemba was convicted for knowingly letting the army he commanded commit hundreds of rapes and pillages.53 The OTP emphasized that the crime’s seriousness was elevated by the impact on civilians. Innocent women, children, and persons in their home were subjected to these attacks—though an approximate figure is not shared.54 Dyilo was convicted as co-perpetrator for committing the war crime of enlisting and conscripting children under the age of 15 to join the Patriotic Force for the Liberation of Congo.55

Dyilo was convicted for leading the armed group that recruited, trained, and used hundreds of young children as child soldiers to kill, rape, and destroy villages.56 Children as young as nine were forced to become soldiers and commit atrocities against innocent people. The children were abducted after school and while playing with friends and many of them since became severely impacted by the effects of their actions. Similar to Bemba’s conviction, Dyilo was convicted for his crimes against hundreds as opposed to thousands of direct victims.

All the aforementioned crimes are egregious, and they each met the gravity standard required by the Court to proceed to trial and ultimately to conviction. Yet, their differences in scale and commission speak to the discretion of the OTP and the Court in deciding what constitutes a valid case for criminality. If the Court truly only handles the most serious crimes of the utmost importance to the international community, why is there so much variation with respect to gravity? Of the handful of cases that have successfully reached a conviction through the Court, one is for the destruction of religious monuments, others are for the killings, rape, and pillaging of hundreds of innocent civilians, and another relates to the killing and displacement of thousands of civilians.

This range reflects an incredible amount of discretion and signals that there is no uniformity for gravity which avails the Court to arguably make political decisions. The OTP and the Court are within their rights to take agency in these difficult decisions, but that leaves many skeptics concerned that they have interpreted the Rome Statute in a biased or political way. The existing convictions for example, are all for leaders in African countries, which significantly affected the Court’s international legitimacy and strength. This criticism also coincided with the Court’s decision to reevaluate the types of cases it selects.

IV. Conclusion

The ICC is a powerful institution for international justice tasked with prosecuting the most egregious crimes that are of great importance to the international community. Despite the Court’s significant impact, it is bound by several limits that affect its interests and how it operates. Those limits namely include its membership, jurisdiction, and international perception. Under those restrictions, cases are reviewed for gravity at the outset during case selection, then again during trial, and at conviction for sentencing. The vague nature of the gravity principle affords the Court and the OTP significant discretion with respect to what it deems serious enough for trial. The inherent ambiguity in gravity has availed the Court to make decisions that have been perceived as political by critics. An analysis of cases chosen for preliminary examination and cases that reached convictions demonstrates this broad discretion that allows for unequal application and possibly biased decision making.

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

1. 1.

   About the Court, Int’l Crim. Ct., available online (last visited Dec. 12, 2023); 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. ↩

2. 2.

   International Criminal Court, Understanding the International Criminal Court 3 (Mar. 12, 2021), available online, archived. ↩

3. 3.

   Id. ↩

4. 4.

   Id. at 10. ↩

5. 5.

   John Choon Yoo & Ivana Stradner, The ICC Claims to be an Independent Judicial Institution Not Subject to Political Control, However, the ICC is a Political Institution That Promotes Double Standards, ICC Forum (Jan. 8, 2021), available online. ↩

6. 6.

   Understanding the International Criminal Court, supra note 2, at 10. ↩

7. 7.

   Id. at 14. ↩

8. 8.

   Patrick Wintour, UK Government Challenged Over ICC Inquiry Into Israel’s Conduct, The Guardian, Nov. 12, 2023, available online. ↩

9. 9.

   Kamari Maxine Clarke, Is the ICC Targeting Africa Inappropriately or Are There Sound Reasons and Justifications for Why All of the Situations Currently Under Investigation or Prosecution Happen to Be in Africa?, ICC Forum (Mar. 17, 2013), available online. ↩

10. 10.

    Venezuela I, Int’l Crim. Ct., available online (last visited Dec. 12, 2023). ↩

11. 11.

    Clarke, supra note 9. ↩

12. 12.

    Is the ICC Targeting Africa Inappropriately?, ICC Forum (Mar. 17, 2013), available online. ↩

13. 13.

    Franck Kuwonu, ICC: Beyond the Threats of Withdrawal, Afr. Renewal (May 2017), available online. ↩

14. 14.

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

15. 15.

    Rome Statute, supra note 1, at Art. 6. ↩

16. 16.

    What is the Universe of Cases Upon Which the ICC Should Focus? What Should Be the Threshold for the Gravity That Warrants Investigation of a Situation or Prosecution of Those Most Responsible?, ICC Forum (Jul. 1, 2021) [hereinafter Gravity Issue], available online. ↩

17. 17.

    Ford, supra note 14, at 10. ↩

18. 18.

    Gravity Issue, supra note 16. ↩

19. 19.

    Al Mahdi Case, Int’l Crim. Ct., available online (last visited Dec. 12, 2023). ↩

20. 20.

    Nicholas Jubber, Ahmad al-Faqi al-Mahdi: The Vandal of Timbuktu, BBC News, Sep. 27, 2016, available online. ↩

21. 21.

    Id. ↩

22. 22.

    Id. ↩

23. 23.

    Anissa Barrak, Interview with Ahmad Al Faqi Al Mahdi: “I plead guilty”, UNESCO Courier, Oct. 17, 2017, updated Jun. 9, 2023, available online. ↩

24. 24.

    Rome Statute, supra note 1, at Art. 8. ↩

25. 25.

    Press Release, ICC, ICC Trial Chamber VIII Declares Mr. Al Mahdi Guilty of the War Crime of Attacking Historic and Religious Buildings in Timbuktu and Sentences Him to Nine Years’ Imprisonment (Sep. 27, 2016), available online. ↩

26. 26.

    31 Cases, Int’l Crim. Ct., available online (last visited Dec. 12, 2023). ↩

27. 27.

    Samirah Majumdar & Virginia Villa, Globally, Social Hostilities Related to Religion Decline in 2019, While Government Restrictions Remain at Highest Levels, Pew Research Center (Sep. 30, 2021), available online. ↩

28. 28.

    Id. ↩

29. 29.

    Al Mahdi Case, supra note 19. ↩

30. 30.

    Office of the Prosecutor, ICC, Situation in Iraq/UK: Final Report (Dec. 9, 2020) [hereinafter Iraq/UK Report], available online. ↩

31. 31.

    Id. at 58. ↩

32. 32.

    Id. ↩

33. 33.

    Human Rights Watch, United Kingdom: ICC Prosecutor Ends Scrutiny of Iraq Abuses (Dec. 10, 2020) [hereinafter Iraq Abuses], available online. ↩

34. 34.

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

35. 35.

    Id. at 5. ↩

36. 36.

    Id. at 6. ↩

37. 37.

    Iraq/UK Report, supra note 30, at 31. ↩

38. 38.

    Id. at 4. ↩

39. 39.

    Fatou Bensouda, ICC Prosecutor, Statement on the Conclusion of the Preliminary Examination in the Situation in Iraq/United Kingdom (Dec. 9, 2020), available online. ↩

40. 40.

    Iraq/UK Report, supra note 30, at 101. ↩

41. 41.

    Iraq Abuses, supra note 33. ↩

42. 42.

    Iraq/UK Report, supra note 30, at 4. ↩

43. 43.

    Id. at 36. ↩

44. 44.

    Id. at 52. ↩

45. 45.

    Iraq/UK Report, supra note 30, at 9. ↩

46. 46.

    Iraq Abuses, supra note 33. ↩

47. 47.

    Id. ↩

48. 48.

    Rome Statute, supra note 1, at Art. 8. ↩

49. 49.

    International Criminal Court, Case Information Sheet: The Prosecutor v. Germain Katanga, ICC-01/04-01/07 (Jul. 2021), available online (last visited Dec. 11, 2023). ↩

50. 50.

    The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07, Prosecutor’s Opening Statement, 11 (Nov. 24, 2009), available online. ↩

51. 51.

    Id. at 11. ↩

52. 52.

    Id. at 7. ↩

53. 53.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Prosecutor’s Opening Statement, 3 (Nov. 22, 2010), available online, archived. ↩

54. 54.

    Wairagala Wakabi, Prosecution’s Opening Statement in Bemba Trial, Int’l Just. Monitor (Dec. 15, 2010), available online. ↩

55. 55.

    International Criminal Court, ICC-01/04-01/06, Case Information Sheet: The Prosecutor v. Thomas Lubanga Dyilo (Jul. 2021), available online (last visited Dec. 12, 2023). ↩

56. 56.

    Wakabi, supra note 54. ↩