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. ↩