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. ↩