ICC Forum

A Single Comment — Permalink

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?”

Why the Question of the Sufficiency of Gravity in the Rome Statute Remains Problematic

I. Prelude

The requirement of “sufficient gravity”, as one of the bases to determine the admissibility threshold for cases under the jurisdiction of the International Criminal Court (ICC), is a matter that has generated considerable scholarly discourse. The concept of gravity threshold is incredibly critical at almost every stage of the proceedings under the Rome Statute, before the ICC. It has been argued that gravity is an important factor in determining which situations should be authorized by the court for investigation, which suspects should be arraigned before the court for trial, and what sentence should be imposed on the individuals convicted of violations of Rome Statute crimes. [Ford, S. The meaning of gravity at the international criminal court: A survey of attitudes about seriousness of mass atrocities 24 U.C. Davis J. Int’l L. & Pol’y 210 (2018).] More significantly, the gravity question plays a pivotal role in influencing the intervention by the ICC at the investigation and prosecution of Rome Statute crimes.

II. The Requirement of Gravity Under the Rome Statute

The requirement of sufficient gravity as provided under the Rome Statute, being a subjective standard, presents a problematic situation when it comes to determining, with exactitude, what facts amount to that standard. To illustrate this difficulty further, it will be necessary to start off by looking at the relevant provisions of the Rome Statute.

Article 17(1) of the Rome Statute, in dealing with admissibility requirements, provides thus:

Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:

  1. 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;
  2. 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;
  3. 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;
  4. The case is not of sufficient gravity to justify further action by the Court.
Expand

From the provisions of article 17(1) outlined above, we see that there are four requirements on the question of admissibility of matters before the court. The question of whether a case is of sufficient gravity to justify further action, is the fourth and final requirement in the proceedings before the ICC Pre-trial chamber to determine admissibility under the Rome Statute. Positively read and construed, the listing of the requirement of sufficiency of gravity under article 17(1)(d) must be considered in an overarching, contextualized approach taking into account all the other three requirements under article 17(1)(a)-(c), and not independently.

The essence of article 17(1)(d) of the Rome Statute is that a case shall be found inadmissible before the ICC if it is not of sufficient gravity to justify further action by the court. In terms of this criterion, however, the gravity or seriousness of the crime is the basis for determining which cases will be admissible in the ICC, be judicially dealt with in terms of the Rome Statute. It entails that where it is established that no sufficient gravity exists, then no further action is justified. What amounts to further action is not expressly stipulated in the immediate text of the Rome Statute. It may be suggested that the further action, in this regard, may include the initiation of the investigation, on the part of the ICC, or the prosecution of individuals suspected on being responsible for the commission of heinous international crimes. This, of necessity, implies a juridical dimension on the international plane, to the establishment of the requirement of gravity. Recourse would then be made to the existing, and developing, jurisprudence of the court.

Arguably, however, it is my position that the concerned national criminal jurisdiction is not barred from any similar further action owing to the insufficiency of gravity, in pursuit of justice. This has important ramifications for the question of impunity gap, and the policy of positive complementarity [Positive complementarity has been defined as: [A]ll activities/ actions whereby national jurisdictions are strengthened and enabled to conduct genuine national investigations and trials of crimes included in the Rome Statute, without involving the Court in capacity building, financial support and technical assistance.] in general, as will be seen as this discussion progresses. Intrinsic in this discourse, therefore, is what exactly are the parameters of the requirement of sufficient gravity under the Rome Statute. This a problematic area, and we concern ourselves with this question in this discussion.

Consequently, the begging question is: what was the intention of the drafters when they sought to formulate the provisions of the Rome Statute on sufficiency of gravity? According to Benvenuti, the rationale for the principle of sufficient gravity can be seen in the drafter’s intention to provide for control over flooding the court with minor offenses while the high-profile offenders go about free and unpunished. [See Benvenuti “Complementarity” 21.] In the view of El Zeidy, this reasoning appears to be grounded on the declaration by member states in the Preamble to the Rome Statute wherein they undertake to fight impunity for the “most serious crimes of concern to the international community as a whole.” [See generally El Zeidy (2008) 57 International & Comparative Law Quarterly 403-15; El Zeidy (2008) 19 Criminal Law Forum 35-57.] But this statement on its own does not provide us with sufficient enlightenment on why the focus is on the most serious crimes, and not other crimes. All international crimes, notwithstanding the magnitude, are heinous crimes and their violation should naturally attract punishment even by the ICC.

In my view, however, the rationale for sufficient gravity requirement may have been influenced by the wisdom to avert the possibility that the ICC would be overwhelmed, and that a sieving means or yardstick, as it were, had to be designed to control the possible flood of cases into the ICC. Why do I say this? Assuming, for analysis purposes, the resources were not a constraint factor for the ICC, it would be argued that the ICC would be more willing to admit most Rome Stature cases submitted to it, in a bid to combat impunity globally. However, in light of the reality of the inevitable resource constraint, the yardstick of the sufficiency of gravity remains a relevant consideration.

It has been argued that the issue of sufficient gravity may not, strictly speaking, be part of the admissibility rules—or of complementarity for that matter. Moreover, the question of sufficient gravity is subjective. The Rome Statute contains no explanation of what exactly amounts, by objective standards, to sufficient gravity or its application. [See generally these works by El Zeidy: El Zeidy (2002) 23 Michigan Journal of International Law 869-975; El Zeidy (2005) 5 International & Comparative Law Quarterly 83-119.]

El Zeidy observes that the question that only cases of a certain degree of gravity should be dealt with before the court has received little attention in the literature of the law in this realm. [El Zeidy MM (2006) 19 Leiden Journal of International Law 741-51; El Zeidy (ed.) The International Criminal Court and Complementarity 393-420;] He discusses the notion of introducing an element of gravity to serve as part of the system of admissibility of complaints before the court. [El Zeidy MM “The legitimacy of withdrawing state party referrals” 55-78.]

The court may, in determining the sufficiency of gravity, take into account the degree and magnitude of the offence and the seriousness of the consequences of the prohibited act. It is important to point out that the degree of participation in the offence is also relevant in influencing the determination of the sufficiency of gravity. [Ibid.] This demonstrates the degree of latitude the court has in determining the the sufficiency of gravity in a given case presented before it.

As indicated above, the determination relating to gravity, is not confined only to the juridical aspects of the court’s proceedings. Invariably, the Office of the Prosecutor of the ICC (OTP) becomes the starting point, where the question of gravity is addressed. Given this onerous responsibility, the OTP devised a framework on how to process issues concerning gravity threshold. In the next section, we will look at the OTP’s definition and regulations designed to deal with the gravity question.

III. The OTP’s Definition of Gravity

The OTP has provided a very comprehensive, and in my view, quite coherent definition of gravity, which are compartmentalized into four factors: (a) the scale of the crimes; (b) their nature; (c) the manner of their commission; and (d) their impact. [See Office of the Prosecutor, Regulations of the Office of the Prosecutor, Doc. No. ICC-BD/05-01-09 at Reg. 29(2); see also, Office of the Prosecutor, Policy Paper on Preliminary Examinations, Nov 2013 at ¶¶ 59-66.]

The OTP’s Policy Paper on Preliminary Examinations provides thus:

  1. The scale of 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, or their geographical or temporal spread (high intensity of the crimes over a brief period or low intensity of the crimes over a brief period or low intensity of crimes over an extended period).
  2. The nature of the crimes refers to the specific elements of each offence such as killings, rapes and other crimes involving sexual or gender violence and crimes committed against children, persecution, or the imposition of conditions of life on a group calculated to bring about its destruction.
  3. The impact of crimes may be assessed in light of, inter alia, the sufferings endured by the victims and their increased vulnerability; the terror subsequently instilled; or the social, economic and environmental damage inflicted on the affected communities. [See the OTP Policy Paper on Preliminary Examinations, ¶¶ 62-65, ibid.]

According to the OTP, the elements outlined above, form the bases for the assessment or determination of the requisite sufficiency of gravity. They provide guidelines on how the OTP processes questions of gravity threshold, and how it approaches the issue before the other organs of the court. For instance, The guidelines also highlight how the OTP deals with the presentation of the gravity question before the Pre-Trial Chamber. The guidelines are also instrumental in highlighting the participation of the OTP and other parties, when the matter proceeds to sentencing before any other chamber of the court. It is submitted that the gravity considerations remain live throughout the entire legal journey of a matter that has attracted the attention of the ICC.

It may be argued that, given that the question of gravity is a subjective rather than objective, the criteria developed by the OTP are not necessarily conclusive, in establishing the sufficiency or otherwise of gravity in a given legal scenario. This is partly because in the realm of international criminal justice there are multiple stakeholders and players whose respective interests and views on the requirements for gravity threshold may vary diametrically. In my view, this therefore would have the effect of significantly influencing the perspective of such interest groups or stakeholders with respect to how they should respectively approach gravity.

The jurisprudence of the ICC on various matters, including gravity, is still evolving, in the context of the teething institutional framework, and therefore, in my view, not fully established as to determine consistent criteria for gravity. Therefore, the subjective nature of the concept remains a problematic legal issue in the Rome Statute. It is opined that with the development of more jurisprudence of the court in the realm of gravity threshold, there will slowly emerge a more concrete and objective standard for determining the sufficiency of gravity—and thereby make a gradual departure from the more problematic subjective approach. It is submitted that, in the ultimate analysis, the court has a juridical responsibility to developed consistent and coherent jurisprudence on the question of gravity, which may in turn influence future development of the Rome Statue.

IV. The Impunity Gap and Positive Complementarity

The impunity gap arises where an international forum prosecutes only those individuals most responsible for international crimes, thereby allowing lesser-ranking offenders a degree of impunity. [See generally Report of the Bureau on Stocktaking of the Principle of Complementarity: Bridging the Impunity Gap ICC-ASP/8/51 Resumed Eighth Session 18 March 2010.]

Owing largely to its capacity constraints, the ICC has tended to deal only with situations and cases involving high-ranking suspected offenders. Consequently, many lesser-ranking offenders are not prosecuted by the ICC but are left for the domestic criminal jurisdiction to deal with. [See, for example, The Prosecutor v Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen ICC-02/04-01/05-377 (March 10, 2009) available online.] Coupled with the even more severe constraints inherent in most national jurisdictions, notably in the developing world, the result is that the “impunity gap” tends to remain largely unaddressed.

It is submitted that the strategy of the ICC focussing on those who bear the greatest responsibility for crimes falling within the jurisdiction of the ICC, will continue to result in an impunity gap unless national criminal authorities, the international community, and the ICC work in concert to ensure that all effective means and measures are invoked to bringing other perpetrators to justice, regardless of the magnitude of the alleged crime. [Ibid.]

It has been argued that positive complementarity can help close the impunity gap by encouraging domestic criminal prosecutions of international crimes, including those that may not meet the gravity threshold for prosecution by the ICC. [See generally Burke-White (2008) 1 Harvard International Law Journal 49 available online.]

It is thus underscored that the extent to which the ICC and the national criminal jurisdiction, are faced with limitations with regard to dealing with the impunity gap, and considers this problematic impediment in the light of the concept of gravity threshold.

In the ultimate analysis, it is my considered view that the requirement of sufficient gravity is arguably a factor that could facilitate and even widen the impunity gap. An “impunity gap” because it appears to allow for minor offenders to evade the jurisdiction of the ICC and walk away from their crimes scot-free, solely on the basis of the legal technicality of insufficient gravity not meeting the threshold. [See Preamble to the Rome Statute ¶ 4 which expresses the desire of the states to counter impunity for the most serious crimes of concern to the international community as a whole. ]

The discourse further underscores the significance of the concept of positive complementarity in addressing the adverse effects of the impunity gap. Positive complementarity, though currently unsettled as a policy, could provide useful legal apparatus to accelerate the pace of restoration of the rule of law in most communities traumatised by the commission of heinous international crimes. [See generally Bjork & Goebertus “Complementarity in action” (2014) 14 Yale Human Rights and Development Journal 205-29.]

It is my argument that the impetus to consider the requirement of sufficient gravity has been accentuated by the renewed interest of the OTP in vigorously pursuing its policy on positive complementarity, notably, recently with regard to its cooperation agreement with the Republic of Colombia [See Cooperation Agreement between the Office of the Prosecutor of the International Criminal Court and the Government of Colombia, signed in the city of Bogota, D.C., on 28 October 2021 202111028-OTP-COL-Cooperation-Agreement available online. Also available online]. As will be demonstrated in this discourse, this is because, in general, the ICC will seek to focus on a certain level of intervention, rather than accommodate all cases regardless of the sufficiency of the gravity entailed.

It is thus critical to consider what is entailed in the requirement of sufficient gravity under the Rome Statute, and how that requirement has influenced the determination by the OTP to pursue the policy of positive complementarity.

It is important to note, however that the requirement of “sufficient gravity” is designed within the framework of the Rome Statute to apply to all cases before the ICC, irrespective of whether the national jurisdiction has already acted upon them or not.

From the preceding analysis, it may be concluded that the complementarity principle as provided for in the Rome Statute plays a crucial role as a legal instrument that strikes a critical balance between the desire to ensure an effective international criminal justice system to prevent impunity, on the one hand, and the protection of state sovereignty, on the other hand. And to this extent, in my view, positive complementarity is an inevitable critical product of the ultimate determination of the requirement of gravity sufficiency.

I have underscored the significance of the requirement of sufficiency of gravity as one of the tenets of the principle of complementarity. In light of the preceding analysis, it is submitted that there is no plausible justification in any reasoning that the court has become complicit in the refusal of some states to confront suspects of the most serious violators of international human rights and humanitarian law on the domestic level. Such an allegation has not been effectively established. [See generally, Pisani System of the International Criminal Court 4, available online.] This accusation, in my view is entirely debatable, It is necessary to provide the above analysis of sufficiency of gravity, as an aspect of the principle of complementarity so as to establish a basis upon which to the concept of positive complementarity evolved.

In light of the clear impediment in investigating and prosecuting all cases irrespective of sufficiency of gravity, the ICC, therefore, developed policies to encourage domestic criminal jurisdiction, and provide support where possible, to investigate and prosecute the lesser offenders, as it were, so they may not escape justice under domestic jurisdiction. [See Benzing M. “The complementarity regime of the International Criminal Court: International criminal justice between state sovereignty and the fight against impunity”available online.] As already mentioned in he preceding discussion, this attitude is inspired by the fact that the ICC has limited resources and is not in a position to try all offenders effectively at the same time. [Perrin (2006) 18 Sri Lanka Journal of International Law 301.]

In the result, it can be seen that the negative effect of the requirement of the “gravity threshold” in the Rome Statute which, arguably, has the effect of generating the impunity gap, is addressed through the policy of positive complementarity, by encouraging the states effectively to pursue and commit to justice the so-called “lesser-ranking offenders”. [The gravity threshold is provided for in art 17(1)(d) of the Rome Statute and states that a case is inadmissible where it “is not of sufficient gravity to justify further action by the Court.” On November 6, 2014, the ICC prosecutor announced its decision not to investigate the “Flotilla Incident” on the ground that the situation did not meet the gravity threshold for admissibility. See generally Situation on Registered Vessels of Comoros, Greece and Cambodia article 53(1) Report 3 November 6, 2014 available online.]

It is instructive to note that neither the Rome Statute nor the history of the drafting of the treaty, provides any useful guidance on what situations or cases meet the gravity threshold. [De Guzman (2015) 19 American Society of Law 19 available online.] This, in my view, renders the admissibility threshold requirement of sufficiency of gravity, a subjective standard.

Moreover, it has been argued that proactive or positive complementarity can help seal the impunity gap by encouraging domestic prosecutions of international crimes, including those that may not meet the gravity threshold for prosecution by the ICC. [See generally Burke-White (2008) 1 Harvard International Law Journal 49 available online.]

In the ultimate analysis, it is my view that the need to address the question of the impunity gap, coupled with the gravity threshold requirements, has, in turn, influenced the evolution of the policy of positive complementarity.

Bibliography

Benvenuti P. “Complementarity”

Benvenuti P. “Complementarity of the International Criminal Court to national criminal jurisdictions” in Lattanzi F. & Schabas WA (eds.) Essays on the Rome Statute of the International Criminal Court vol 1 (I1 Sirente Fagnano Alto 1999) 21-50

Burke-White (2008) 49 Harvard International Law Journal

Burke-White W. “Proactive complementarity: The International Criminal Court and national courts in the Rome system of international justice” (2008) 49 Harvard International Law Journal 53-108 available online

De Guzman MM “What is the gravity threshold for an ICC investigation? Lessons from the Pre-Trial Chamber decision in the Comoros Situation” (2015) American Society of Law 19 available online

El Zeidy MM “The gravity threshold under the statute of the International Criminal Court” (2008) 19 Criminal Law Forum 35-57

El Zeidy “The legitimacy of withdrawing state party referrals”

El Zeidy MM “The legitimacy of withdrawing state party referrals & ad hoc declarations under the Statute of the International Criminal Court” in Stahn C. & Sluiter G. (eds.) The Emerging Practice of the International Criminal Court (Koninklijke Brill Leiden 2009) 55-78

El Zeidy (2002) 23 Michigan Journal of International Law

El Zeidy MM “The principle of complementarity: A new machinery to implement international criminal law” (2002) 23 Michigan Journal of International Law 869-70

El Zeidy (2008) 57 International & Comparative Law Quarterly

El Zeidy MM “From primacy to complementarity and backwards: (Re)visiting Rule 11bis of the ad hoc Tribunals” (2008) 57 International & Comparative Law Quarterly 403-15

El Zeidy (2006) 19 Leiden Journal of International Law

El Zeidy MM “Some remarks on the question of admissibility of a case during arrest warrant proceedings before the International Criminal Court” (2006) 19 Leiden Journal of International Law 741-51

El Zeidy (2008) 19 Criminal Law Forum

El Zeidy MM “The gravity threshold under the statute of the International Criminal Court” (2008) 19 Criminal Law Forum 35-57

El Zeidy (2002) 23 Michigan Journal of International Law

El Zeidy MM “The principle of complementarity: A new machinery to implement international criminal law” (2002) 23 Michigan Journal of International Law 869-899

El Zeidy (2005) 5 International Criminal Law Review

El Zeidy MM “The Ugandan government triggers the first test of complementarity principle: An assessment of the first state’s party referral to the ICC” (2005) 5 International Criminal Law Review 83-119

Perrin (2006) 18 Sri Lanka Journal of International Law 301.

Schabas WA “Prosecutorial discretion and gravity” in Stahn C. & Sluiter G. (eds.) The Emerging Practice of the International Criminal Court (Koninklijke Brill Leiden 2009) 229-46

Stahn C. & El Zeidy MM (eds.) The International Criminal Court and Complementarity: From Theory to Practice (Cambridge University Press Cambridge 2011) 21-32

Stegmiller I. “The gravity threshold under the ICC statute: Gravity back and forth in Lubanga and Ntaganda” (2009) 9 International Criminal Law Review 547-65

Collapse