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Comment on the Gravity Question: “What is the universe of cases upon which the ICC should focus? What should be the threshold for the gravity that warrants investigation of a situation or prosecution of those most responsible?”

Muhammad Muzahidul Islam
37553
December 13, 2021
6:29 am

Summary

Gravity issue is very important both for the Office of the Prosecution (OTP) and the International Criminal Court (the Court or ICC) for the selection of ‘situations’ and ‘cases’. Through the Rome Statute ICC is mandated to try four crimes i.e. genocide, war crime, crimes against humanity, and the crime of aggression. All the four crimes are serious in nature. The prohibition of those four crimes had already attained the norms of jus cogens; because the nations of this world by their State-Practice and Opinio Juris had declared the non-derogable status of the rights that could be violated by those crimes. Should all the four crimes committed anywhere in the globe be entertained by the OTP? Or a discretion has been left to the OTP in relation to the selection of situations and cases? These questions invite further discussion and analyses on the interpretation of the relevant provisions of the Rome Statute including preamble, articles 1, 5, 17 and 53. And I would make an effort in order to find the true meaning of those provisions of the Rome Statue. I would state the principles of interpretation of international documents, first. Secondly, I would state the relevant provisions of the Rome Statute and the Policy. Thirdly, I would focus on the legal analyses on the gravity issue through the lens of the principles of interpretation. And finally, I would pull conclusion on the gravity issue focusing on some situations.

Principles of Interpretation

The gravity issue involves the interpretation of the certain provisions of the Rome Statute. And that is why it is desirable and expected that interpretation of those provisions may warrant the recourse to the established principles of interpretation.

The commonly acknowledged ‘Schools of Interpretation’ (Details: International Judicial Monitor, Published by the American Society of International Law and the International Judicial Academy, September 2006, Volume 1, Issue 4) and instructions of articles 31-32 of Vienna Convention on Law of Treaties (VCLT) are outlined below and it is suggested that the right one could be applied to interpret the relevant provisions of the Rome Statute involved in the gravity issue:

a. As per ‘Textualist’ interpretation begins with the words of a provision itself, as they are commonly understood. Article 31 of VCLT also calls for an examination of a text’s ‘ordinary meaning’.

b. Where the text is ambiguous or obscure or the plain meaning of the text leads to a manifestly absurd or unreasonable result, the ‘Intentionalist-Approach’ can be applied in order to reach a sensible result. And this approach has been reflected in the provision of VCLT which permits to analyze the negotiating history to reach a confirmed and sensible result.

c. ‘Teleological Approach’ seeks to effectuate the purpose of an agreement rather than slavishly following the text or attempting to divine the intent of the drafters. It is captured in the VCLT’s requirement that treaties be construed in light of their “object and purpose” and in view of “relevant rules of international law”

Interpretation of Treaties

Article 31, General Rule of Interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) Any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) Any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) Any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.

Article 32. Supplementary Means of Interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) Leaves the meaning ambiguous or obscure; or (b) Leads to a result which is manifestly absurd or unreasonable.

It is respectfully submitted that ‘the VCLT’ could be applied as an aiding instrument for the interpretation-purposes. Since the customary rules had been incorporated into this instrument it may safely be applied to interpret a particular instrument without giving due regard to the ratification etc. issues.

Relevant Provisions of Rome Statute

The gravity issue involves the interpretation of the following provisions of the Rome Statute:

Preamble: The States Parties to this Statute, … Emphasizing that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions.

Article 1: The Court: An International Criminal Court ("the Court") is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.

Article 5: Crimes within the jurisdiction of the Court: The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression.

Article 17: Issues of admissibility: 1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court.

Article 53: Initiation of an investigation: 1. The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether: (a) The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed; (b) The case is or would be admissible under article 17; and (c) Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice. If the Prosecutor determines that there is no reasonable basis to proceed and his or her determination is based solely on subparagraph (c) above, he or she shall inform the Pre-Trial Chamber.

Legal Analyses

Let us interpret the article 1 first. According to this article ‘the Court’ would try only the persons for the most serious crimes of international concern. And it is not the only requirement. This article further reads that ‘and shall be complementary to national criminal jurisdictions.’

When we read article 1 in conjunction with paragraph 10 of the preamble we find that the Court’s jurisdiction shall be complementary to national criminal jurisdictions; paragraph 10 of the preamble clearly reads that ‘….emphasizing that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions’.

If we read article 1 in conjunction with article 17(1)(a), 17(1)(b) and 17(1)(d) we find that in order to be entertained by the Court both the ‘complementarity’ and ‘gravity’ requirements must be satisfied. Article 17(1) reads as follows - ‘having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court’.

When we read article 1 in conjunction with article 53(1) (b) and 53(1)(c) we find that ‘complementarity’ and ‘gravity’ requirements must be satisfied. Article 53(1)(b) and 53(1)(c) provides the following provisions: Article 53(1)The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether: (b) The case is or would be admissible under article 17; and (c) Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.

When we examine article 5 we find that the jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. It is true that all the four crimes mentioned in the Rome Statute are serious crimes in nature and attained the status of jus cogens. The question is – do all those crimes inherently, by virtue of their status, qualify the requirement by creating concern to the international community as a whole? Or in which situation a case can qualify this requirement? This very question has not been, expressly, answered by the Rome Statute. However, an attempt was made by a policy paper on case selection and prioritisation (2016). This policy paper sets out the considerations which guide the exercise of prosecutorial discretion in the selection and prioritisation of cases for investigation and prosecution. I quote the relevant provisions of the policy paper below:

32. In relation to gravity as a criterion for admissibility under article 17(1)(d), the Appeals Chamber has dismissed the setting of an overly restrictive legal bar that would hamper the deterrent role of the Court (Footnote 30, Situation in the Democratic Republic of the Congo, "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'", ICC-01/04-169, 13 July 2006, paras. 69-79). The factors that guide the Office’s assessment of gravity include both quantitative and qualitative considerations, relating to the scale, nature, manner of commission and impact of the crimes ( Footnote 31, Regulation 29(2) of the Regulations of the Office of the Prosecutor; Policy Paper on Preliminary Examinations, ICC-OTP November 2013, paras. 59-66; see also Situation in Georgia, “Decision on the Prosecutor’s request for authorization of an investigation”, ICC-01/15-12, 27 January 2016, para. 51). 34. The Office will select cases for investigation and prosecution in light of the gravity of the crimes, the degree of responsibility of the alleged perpetrators and the potential charges. The weight given to each criterion will depend on the facts and circumstances of each case and each situation, and the stage of development of the case hypothesis and investigation (Footnote 33 deleted). The Case Selection Document will be reviewed as investigations proceed, by applying the same case selection criteria (Footnote 34 deleted). 37. The Office’s assessment of gravity includes both quantitative and qualitative considerations. As stipulated in regulation 29(2) of the Regulations of the Office, the factors that guide the Office’s assessment include the scale, nature, manner of commission, and impact of the crimes (Footnote 38, The Prosecutor v. Bahar Idriss Abu Garda, “Decision on the confirmation of charges”, ICC-02/05- 02/09-243-Red, 8 February 2010, para. 31; Situation in the Republic of Cote d'Ivoire, “Corrigendum to ‘Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire’”, ICC-02/11-14-Corr, 3 October 2011, paras. 203-204).

Conclusion

After the above analyses I would pull a conclusion on the gravity issue. And in order to do so I would state three instances. And that would give an idea to the OTP where they should or should not entertain a matter within the jurisdiction.

Instance No. 1: The crimes committed are of the most serious crimes of concern to the international community as a whole. And where: (a) The case is not being investigated or prosecuted by a State which has jurisdiction over it, or the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, and the decision resulted from the unwillingness or inability of the State genuinely to prosecute.

In such a situation the OTP should entertain the matter; because unwillingness or inability of the State concerned to carry out the investigation or prosecution would itself deepen or sharpen the seriousness or concern to the international community as a whole and that would create the culture of impunity. It is respectfully submitted that in such a situation the OTP should entertain the matter and that would be in consistence with the spirit of the Rome Statute and the Policy. And further that would be in line with the SDGs.

Instance No. 2: The crimes committed are of the most serious crimes of concern to the international community as a whole. And where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, or the State is willing or able genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, and the decision resulted not from the unwillingness or inability of the State genuinely to prosecute.

In such a situation the OTP should not entertain the matter. It is respectfully submitted that in such a situation the domestic judicial measure would ensure the justice closing the mouth of impunity and that would be in consistence with the spirit of the Rome Statue and the Policy. And further that would be in line with the SDGs.

Instance No. 3: The crimes committed are of most serious crimes in nature. However, they fail to create concern to the international community as a whole.

In such a situation the OTP should, it is submitted, leave the matter for the domestic judicial measures.

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