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

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

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

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

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

III. Recommendations

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

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

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

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

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

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

IV. Conclusion

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

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

1. 1.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 5, available online; Susana SáCouto & Katherine A. Cleary, The Gravity Threshold of the International Criminal Court, 23 Am. U. Int’l L. Rev. 807 (2008), available online. ↩

2. 2.

   SáCouto & Cleary, supra note 1. ↩

3. 3.

   See id.; Margaret M. deGuzman, Choosing to Prosecute: Expressive Selection at the International Criminal Court, 33 Mich. J. Int’l L. 265, 269 (2012), available online; Stuart Ford, The Meaning of Gravity at the International Criminal Court: A Survey of Attitudes About the Seriousness of Mass Atrocities, 24 U.C. Davis J. Int’l L. & Pol’y 209, 210 (2018), available online. ↩

4. 4.

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

5. 5.

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

6. 6.

   Id. ↩

7. 7.

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

8. 8.

   Id. ¶ 39. ↩

9. 9.

   Id. ¶ 40. ↩

10. 10.

    Id. ¶ 41. ↩

11. 11.

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

12. 12.

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

13. 13.

    Id. ↩

14. 14.

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

15. 15.

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

16. 16.

    Id. at 36. ↩

17. 17.

    Id. ↩

18. 18.

    Ford, supra note 3, at 248. ↩

19. 19.

    Stuart Ford, What Investigative Resources Does the International Criminal Court Need to Succeed?: A Gravity-Based Approach, 16 Wash. U. Global Stud. L. Rev. 1, 48 (2017), available online. ↩

20. 20.

    Id. at 62–64. ↩

21. 21.

    Id. ↩

22. 22.

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

23. 23.

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

24. 24.

    Heller, supra note 11, at 14. ↩

25. 25.

    Id. ↩

26. 26.

    Id. at 16. ↩

27. 27.

    Ford, supra note 3, at 248. ↩

28. 28.

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

29. 29.

    Ford, supra note 19, at 67. ↩

30. 30.

    Id. ↩

31. 31.

    Id. at 65. ↩

32. 32.

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

33. 33.

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

34. 34.

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

35. 35.

    Heller, supra note 11, at 3. ↩

36. 36.

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