Invited Experts on Gravity Question

Buchwald Avatar Image Todd F. Buchwald Former Ambassador, Office of Global Criminal Justice, U.S. Department of State

The Aperture of the ICC—More Than Just the Issue of Gravity

We may be misconceiving the aperture issue if we place exclusive or too much focus on gravity. If it is true, as the report of the Independent Experts suggests, that the OTP and the Court will need to narrow the aperture in order for the Court to succeed, we should look to the various different ways that the aperture is controlled. In some ways, it is worth considering an approach in which the aperture-control mechanism can be applied in a more holistic manner—for example, an approach in which gravity is considered not solely in relation to the underlying conduct, but in relation to how egregious any failure to investigate or prosecute, or any decisions not to pursue conventional criminal responsibility, may be.

Summary

What is the aperture issue? On a camera, the aperture is the opening through which light passes for the camera to process. It can be widened or narrowed, depending on the desired result. Light is essential, but different people will have different perceptions of what settings are optimal.

So too with the ICC. The ICC has no “lens” as such, but various dials regulate the size of the opening and how the Court goes about selecting the situations and cases on which it will focus. Questions about the aperture will be at the forefront of issues confronting the Court as the ICC enters its third decade. The Independent Expert Report, completed in September 2020, underscored the central importance of getting these issues right,1 as has the newly-elected ICC Prosecutor.2 As discussed below, much of the aperture discussion has been about possible re-calibration of the way the ICC approaches the issue of gravity, but it would be prudent for the Court and the new Prosecutor to broaden their thinking in the way they analyze these issues.

Argument

I. How Does the Rome Statute Set the Aperture?

The Rome Statute controls the aperture in numerous ways but the two most basic are its provisions on jurisdiction and admissibility.

A. Jurisdiction

First, the Rome Statute tells us the types of cases over which the ICC can and cannot exercise jurisdiction. Article 11, for example, tells us that the ICC has jurisdiction only over crimes committed after the Rome Statute entered into force. More fundamentally, Article 5 tells us that the ICC has jurisdiction only over four specific types of crimes. The negotiators of the Statute considered, but ultimately rejected, proposals to include numerous other crimes but, in the end, created a Court with jurisdiction over genocide, crimes against humanity, war crimes and the crime of aggression, and—indeed—only as those four crimes are defined in the Rome Statute.3 Thus, no matter how heinous, de-stabilizing, or shocking to the conscience they may be, crimes like airplane hijacking, the murder of diplomats, killing of peacekeepers outside of armed conflict, mass shootings, systemic corruption, staging of a military coup, drug-trafficking, and terrorism do not fall within the Court’s jurisdiction unless in particular cases they somehow manage to fit into the definitions of these four crimes.

The Rome Statute also established preconditions to the exercise of jurisdiction. Thus, within the universe of crimes described in Article 5, the Court may not exercise jurisdiction unless the conduct in question occurred on the territory of a state that is a party to the Rome Statute or the accused is a national of such a state.4 Once again, no matter how heinous, de-stabilizing, or shocking to the conscience they may seem to the international community, the Court may not exercise jurisdiction unless these preconditions are satisfied. The distinction between situations in which the Court has jurisdiction and those in which the Court is able to “exercise” jurisdiction need not be addressed here. The relevant point for present purposes is that, taken together, these provisions circumscribe the kinds of cases over which the exercise of ICC jurisdiction is possible.

There is another provision—the first sentence of Article 5—that also warrants mention. It precedes the sentence that specifies that the Court has jurisdiction over the four crimes listed above and says that the jurisdiction of the Court “shall be limited to the most serious crimes of concern to the international community as a whole.” At least on its face, this first sentence of Article 5 leaves room for debate whether it is intended to convey that any commission of these four crimes are considered ipso facto to be “the most serious crimes of concern to the international community as a while,” or whether the intent is to limit the Court’s jurisdiction to that subset of these four crimes that is in fact of “most serious concern.” The Preamble of the Rome Statute vows that whatever crimes are included in this category are crimes that “must not go unpunished.”5

Murphy Avatar Image Professor Ray Murphy Professor Irish Centre for Human Rights, School of Law, National University of Ireland Galway

Despite the Concept of Gravity Being a Central Tenet of International Criminal Justice, the Rome Statute Provides Little by Way of Explanation Into What This Actually Means in Practice and Applying a Clear Policy on Case Selection Remains a Challenge

When the OTP determines that certain cases are not of sufficient gravity in the context of an overall situation, it is imperative that it outline how this decision was arrived at. Failure to do so may alienate victims and discredit the Court. The Court will continue to face challenging resource constraints given the high number of situations opened. This has become a key theme over the last year, with the OTP repeatedly raising the issue of budget constraints. This situation renders prioritization between cases a matter of necessity.

Summary

Gravity has a fundamental role to play in informing the Office of the Prosecutor (OTP) in the situation and case selection process. Policy and practice have dictated that international prosecutions be selective and limited to the most serious crimes of international concern. Although the core crimes within the jurisdiction of the International Criminal Court (Court or ICC) are all serious in nature, the gravity threshold is intended to filter the cases that come before the Court and thereby prevent it from being overwhelmed. This does not mean that perpetrators other than leaders should not be brought before the Court, even if it seems implicit that only leaders should be. The policy and practice of the OTP has been subject to criticism and it is legitimate to question the basis on which the OTP is making an evaluation and whether it is a comprehensive, objective analysis based on sound criteria.

The OTP Policy Paper on Case Selection and Prioritisation (Policy)1 marked an important advance in transparency surrounding the policy criteria being adopted in the selection of cases, i.e. whom to prosecute and for what crimes. It also provides an important mechanism to make the OTP’s approach to selection and prioritization of cases more transparent. It should be read in conjunction with the more recent Draft Policy on Situation Completion2 which also references many of the same themes but in the context of a wider situational strategy. The completion policy seeks to illustrate the considerations leading to a decision, in the exercise of prosecutorial discretion, that sufficient prosecutions have been brought in a situation to satisfy the OTP’s mandate under the Rome Statute and goes hand in hand with case selection policy.

In addition to the gravity test, the OTP is obliged to consider the principle of complementarity in deciding whether or not to start an investigation. Crimes that are not of sufficient gravity will be left to possible domestic investigation and prosecution. In order to maintain a manageable workload for both the OTP and the Court, prioritization is a necessity. A central focus of the OTP in assessing gravity should also be the impact for victims and those communities affected by the crimes. The OTP has significant latitude and discretion when it comes to case selection and prioritization. At the same time, Article 53 of the Rome Statute, dealing with the initiation of an investigation and selection choices, ensures that the exercise of such discretion is not unlimited. The process outlined in the Policy facilitates prioritization of cases, completion strategies, and the adoption of a holistic approach while clearly setting out the case strategic and operationalization criteria.

When the OTP determines that certain cases are not of sufficient gravity in the context of an overall situation, it is imperative that it outline how this decision was arrived at. Failure to do so may alienate victims and discredit the Court. The Court will continue to face challenging resource constraints given the high number of situations opened. This has become a key theme over the last year, with the OTP repeatedly raising the issue of budget constraints.3 This situation renders prioritization between cases a matter of necessity.

O’Brien Avatar Image Melanie O’Brien, Ph.D. Senior Lecturer in International Law University of Western Australia Law School

Using the Gravity Threshold to Categorise Low-Ranking Perpetrators and Peacekeepers as “Most Responsible” for International Crimes

When thinking about the idea of “those most responsible,” I keep returning to a quote from Catherine MacKinnon: “to every woman who is raped, the fish who did it is plenty big.” As an example, take the Ongwen case, in which victims provided testimony about their experiences of forced marriage. [...] Myriad Lord’s Resistance Army (LRA) soldiers took or were given girls and women as forced “bush wives,” physically abusing and raping them. Why should the standard be set that only Ongwen is punished, but for all the other girls and women, their abuser faces no accountability simply because of their lower rank?

Summary

When choosing to investigate a situation or prosecute “those most responsible,” the ICC’s Office of the Prosecutor (OTP) relies on limitations imposed by the Rome Statute on jurisdiction and admissibility. One of these requirements is the gravity threshold. This comment argues for the application of a broad concept of gravity to enable two categories of overlooked perpetrators, who still fit the Rome Statute’s gravity threshold, to be considered “most responsible”: low-ranking perpetrators, and peacekeepers (regardless of rank).

Argument

In decisions about cases, the ICC is restricted by resources, and thus will make decisions within the parameters of jurisdiction and admissibility in order to keep the number of situations and cases realistic within the Court’s capacity. One of the ways the OTP limits situations and cases is by applying the required gravity threshold found in the Rome Statute, Articles 17(1)(d), 53.

The OTP has noted that, when assessing gravity, it will be guided by “quantitative and qualitative considerations, relating to the scale, nature, manner of commission and impact of the crimes,” and does not want to set “an overly restrictive legal bar that would hamper the deterrent role of the Court.” In its 2016 Policy Paper on Selection of Cases Selection and Prioritisation, the OTP expands on what is included in the factors relevant to “gravity”: “the scale, nature, manner of commission and impact of the crimes,” outlining suggested elements that would constitute each of these factors.1 The elements provided do not represent an exhaustive list, leaving it open for the OTP to consider other elements that fall within these four broad factors.

This comment will argue that two categories of overlooked perpetrators need to be considered for prosecution by the ICC, because they still fit the Rome Statute’s gravity threshold: low-ranking perpetrators, and peacekeepers (regardless of rank).

Who is “Most Responsible”?

There is a focus in international criminal courts and tribunals, including the ICC, on prosecuting “those most responsible” for international crimes, where “those most responsible” means high-ranking perpetrators, such as political leaders and military commanders.2 However, it can be argued that crimes by lower ranking perpetrators, and by specific categories of perpetrators, would fall within the scope of gravity. Prosecuting low-ranking perpetrators would follow the ruling of the ICC Appeals Chamber, which strongly pointed out that “[f]rom the head of a State downwards every person is personally accountable for the commission of every crime categorized in the Statute” and that “[l]iability is not limited to any category of persons guilty of conduct that constitutes a crime under the Statute.”3 The Appeals Chamber pointed out that if “the jurisdiction of the Court was confined to crimes committed by the top leadership of the State or organization that plan them,” this would render Article 33 of the Rome Statute (superior orders are no defense) superfluous and contradictory to the Statute.4

Stahn Avatar Image Carsten Stahn, Ph.D., LL.M. Professor of International Criminal Law & Global Justice Leiden University

Why a Higher Gravity Threshold May be Part of the Problem Rather than a Solution to the ICC’s Dilemmas

International law has an uneasy relationship to gravity. The notion plays a role across different areas. Systemically, gravity is not only a technical notion, which determines the applicability of norms or jurisdictional or admissibility thresholds, but a relational concept, which provides legitimacy to institutions. The discursive association with grave situations, grave crimes or violations, or the “most responsible persons” provides moral authority or symbolic importance to institutions. Gravity is like a magic spell. The cause pursued by institutions is deemed to create solidarity and compassion. Gravity is a means to increase the expressive potential of international courts and tribunals. It creates an aura that provides weight to their decisions. The institutions become too important to fail from a moral point of view.

Summary

International criminal justice has an uneasy relationship to gravity. Gravity provides legitimacy. However, in ICC practice, the term has often been used as a strategic argument by judges, the OTP or states, in order to pursue specific strategic interests. There is a tendency to put more into the notion than it can bear as a legal concept. I argue against a higher gravity threshold for situation or cases and suggest that we may need less, rather than more gravity, in order to address dilemmas of Court practice. A higher gravity threshold is problematic, since it may deprive the ICC of the flexibility to take on some of the most pressing cases of our time, such as environmental crime, historical injustices, or the intersection between economic and atrocity crime. It may be more promising to articulate underlying policy dilemmas more openly, strengthen motivation of ICC decisions, foster mutual listening, and develop discursive and political structures to implement situation-specific goals and priorities.

Argument

I. Introduction

After almost two decades of practice and a mixed record in investigations and prosecutions, the ICC needs to reconsider some of its investigative policies and strategies. This is no secret. The publicity and prospect of ICC engagement triggers a large amount of communications—more than the Court can handle. States have adopted self-referrals, collective referrals (Venezuela), or Art. 12(3) declarations, in order to enable the Court to intervene. NGOs are keen to involve the Court in any possible atrocity situation, even if the jurisdictional link of the Court is thin or remote.1 The Office of the Prosecutor (OTP) has a large docket of preliminary examinations or situations under investigation.2 Some of them have been pending for decades. Others have only made modest progress. This large pool of situations contrasts with the limited amount of cases that the Court can take on in each situation. This discrepancy requires the OTP to be careful in its situation and case selection. The OTP needs to bring thoroughly investigated cases which have a sufficient success rate at trial based on the evidentiary standards. At the same time, it must represent main patterns of crimes or criminality or capture different layers of responsibility, in order to provide a meaningful justice response to complex conflicts.

The Independent Expert Review has viewed this dilemma. It has made a number of recommendations in order to enable the Court to navigate the tension between its broad mandate and its selectivity. One of the most controversial proposals is the idea to limit the number of situations through a higher gravity threshold. The experts argued that the OTP should “consider the application of a higher gravity threshold in deciding whether to open or continue a PE” in order to allocate the Court’s limited resource to situations “that are the most serious, and for those most responsible for the commission of the crimes.”3 This is clearly reflected in Recommendation 227, which states that “the Prosecutor should consider adopting a higher threshold for the gravity of the crimes alleged to have been perpetrated,” in order to address “the disparity between the OTP resources and the high number of PEs resulting in investigations.”4 It justifies this higher gravity threshold by the alleged foundational purpose of the Court, namely its establishment “to investigate and prosecute the most serious crimes of concern to the international community as a whole” and to “focus on those most responsible for the commission of such crimes.”5 This is complemented by a proposal to reconsider case selection criteria, namely to establish “a hierarchy” of “criteria of highest importance,” including: (i) “the gravity of the crimes,” (ii) “the strength and diversity of the evidence” and (iii) “the degree of responsibility of potential suspects.”6

Weerdesteijn Avatar Image Maartje Weerdesteijn, Ph.D. Assistant Professor VU Amsterdam, Department of Criminal Law and Criminology

Yanev Avatar Image Lachezar Yanev, Ph.D. Assistant Professor of International Criminal Law Vrije Universiteit Amsterdam, Department of Criminal Law and Criminology

Zero Gravity for the International Community? The Impact of Crimes in the OTP’s Gravity Assessment

Given the current focus in the OTP’s Policy Paper on the crimes’ impact on victims and their immediate communities, it seems unlikely that the OTP would also take into account the concerns of the referring states, or the impact that the crimes had on these and other states, in analyzing the gravity of the situation. This is particularly troubling because the deep crisis in which the country has found itself has caused millions of people to flee to neighboring states that struggle to accommodate them. In those circumstances, where the consequences of the crimes spill across borders, the OTP may no longer be able to do justice to the full scope of harm that is caused by the crimes when evaluating the gravity of the situation only by reference to the victims and their community.

Introduction

The concept of “gravity” plays a central role in the procedural framework of the International Criminal Court (ICC). It is contained in Articles 17(1)(d) and 53(1)(c) of the ICC’s Rome Statute and, as Pre-Trial Chamber III noted, is “an additional safeguard, which prevents the Court from investigating, prosecuting and trying peripheral cases.”1 The Office of the Prosecutor (OTP) is, thus, required to select for investigation and prosecution only those situations (and cases) which are sufficiently grave. In this sense, the core function of this concept is to limit the case load of the ICC and help determine where its resources should be directed.2

Filtering “peripheral” situations or cases from those that are grave enough to warrant an ICC investigation has proven to be an exceptionally challenging and controversial task. In part, the difficulty lies with the nebulous meaning of gravity, seeing as neither the Rome Statute nor its travaux préparatoires establish a clear definition of this notion, or state which factors should be taken into account when determining the gravity of a situation or case.3 In the early years of the Court’s functioning, therefore, there was little to guide the OTP’s gravity analyses, which tended to focus on quantitative factors, as evidenced in, e.g., the OTP’s decision in 2006 not to investigate the situation in Iraq.4 This changed when, in 2009, the Regulations of the Office of the Prosecutor entered into force, specifying that the “scale, nature, manner of commission and impact” of the crimes are factors that should be taken into account when evaluating gravity.5 Further explanation of these factors was subsequently provided in the OTP’s Draft Policy Paper on Preliminary Examinations from 2010,6 which was finalized in 2013.7 One notable difference between these two versions of the Policy Paper is the importance that the OTP seemed to attach to the impact that the crimes had on the international community when evaluating their gravity. In particular, this impact was originally included as a relevant consideration in the 2010 Draft, only to be removed from the final version of the Policy Paper.

This comment examines the extent to which the ICC accepts the impact of crimes on the international community as a relevant factor for assessing the gravity of the situation where they are committed and then further discusses the merits of this factor through the prism of the ongoing preliminary examination into the situation in Venezuela.8 The Venezuelan situation is the first time a group of states referred a situation to the ICC, thus expressing their concern over the crimes that seem to have been perpetrated by the Venezuelan government. The situation had already been under preliminary examination and, although the referral would mean the Prosecutor does not need to seek judicial authorization from the Pre-Trial Chamber, the significance of the referral is more symbolic and political than legal.9 The OTP decided in 2020 that there is a reasonable basis to believe that “crimes within the jurisdiction of the Court have been committed in Venezuela since at least April 2017” and the admissibility requirements, including gravity, are now being assessed.10

Given the current focus in the OTP’s Policy Paper on the crimes’ impact on victims and their immediate communities, it seems unlikely that the OTP would also take into account the concerns of the referring states, or the impact that the crimes had on these and other states, in analyzing the gravity of the situation. This is particularly troubling because the deep crisis in which the country has found itself has caused millions of people to flee to neighboring states that struggle to accommodate them.11 In those circumstances, where the consequences of the crimes spill across borders, the OTP may no longer be able to do justice to the full scope of harm that is caused by the crimes when evaluating the gravity of the situation only by reference to the victims and their community.