Symposium: Gravity at the International Criminal Court
Faith in Gravity
By Margaret M. deGuzman
Published on 6 August 2024
The concept of gravity—that some crimes are especially serious—is at the heart of the International Criminal Court (ICC or Court) regime. Among other things, it helps to determine which situations and cases the ICC investigates and prosecutes, and which are left to national courts or, when none are available, to impunity. In other words, gravity aims to ensure that the ICC focuses its efforts on ‘the most serious crimes of international concern’, which are the subjects of its mandate. The legal concept of gravity is enshrined in various articles of the Rome Statute of the ICC, including Article 17(1)(d), which declares ‘inadmissible’ cases ‘not of sufficient gravity to justify further action by the Court’, and requires ICC prosecutors and judges to consider admissibility when deciding whether to investigate situations and adjudicate cases. However, despite the centrality of gravity to determining the parameters of the ICC’s work, the Rome Statute provides little indication of what it means, and the Court’s first two decades have seen prosecutors and judges struggling to fill this void.
Enter Priya Urs’ excellent book, Gravity at the International Criminal Court. Urs meticulously dissects the prosecutorial and judicial efforts to understand and apply gravity and provides practical insights into how they can improve the process for making gravity determinations. For instance, she provides an in-depth analysis of the four factors the ICC Prosecutor and judges have adopted to assess gravity: the scale, nature, manner of commission and impact of the crimes, and determines that two of them—the nature of the crimes and the manner of their commission—overlap to such an extent that the former should be eliminated from the assessment. When it comes to judicial review of prosecutorial gravity determinations, Urs argues that an ‘abuse of discretion’ standard best reflects the respective roles of the Prosecutor and judges under the Statute. The judges, who have been inconsistent in their approaches to this issue, would do well to read Urs’ analysis when next required to review the Prosecutor’s gravity determination.
Although such doctrinal issues occupy the bulk of Urs’ attention in the book, her analysis raises the important foundational question whether the concept of gravity is up to the task of justifying the ICC’s work. As she notes in the conclusion, ‘the relevant legal question . . . is how best to justify, consistently with the Rome Statute and its supporting instruments, the selection of situations and cases by a Prosecutor faced with limited resources and under constant public scrutiny’ (p. 175). In other words, the ultimate question is whether gravity can serve to distinguish ‘the most serious crimes of international concern’ from crimes that do not warrant the Court’s attention and resources. Urs believes it can. In her view, the discretionary application of the gravity criterion for admissibility ‘facilitates the allocation of scarce resources, and . . . does so more convincingly than other criteria relevant to the decisions whether to investigate and whether to prosecute’ (ibid.).
I do not entirely share Urs’ faith in gravity. In my own book, Shocking the Conscience of Humanity: Gravity and the Legitimacy of International Criminal Law, I also wrestled with how best to interpret and apply the gravity requirement. Like Urs, I started from the premise that the concept of gravity as included in the Rome Statute has little inherent content and must be imbued with meaning by the work of the Court’s prosecutors and judges. I also agree with Urs that clarity and consistency in how these actors interpret and apply the gravity requirement for admissibility will enhance the Court’s ability to explain selection decisions in ways that relevant audiences find acceptable. But I am less sanguine than Urs about the potential for discretionary factor-based gravity determinations to serve as adequate normative justifications for the ICC’s selection decisions.
Fundamentally, it seems to me that all significant harm to the human dignity of any person concerns the international community. As such, the normative scope of the ICC’s adjudicative reach should not be limited according to such factors as the scale of harm or how crimes are committed. Rather, the important question is whether the international community’s interest in adjudicating a particular situation or crime outweighs any competing interests of other communities, particularly those most affected by the crimes. Thus, unlike Urs, I agree with the ICC’s judges that Article 17(1)(d) should be interpreted as formulating a threshold to exclude prosecution only of very marginal cases.
Urs, in contrast, advocates an interpretation of Article 17(1)(d)’s gravity requirement as less of a threshold than a vehicle for the Prosecutor’s discretion to decide which situations and cases are the most appropriate subjects of ICC action. I worry that this approach to admissibility could lead to an unduly limited view of the Court’s mandate that would constrain its ability to accomplish important objectives, including the expression of a wide range of global norms. Urs argues that the Court will not be so constrained provided the gravity assessment is understood as a subjective one (p. 168). It seems likely, however, that once the Court finds a situation or case inadmissible for insufficient gravity, it will be unable to admit similar situations or cases without facing significant challenges to its legitimacy. Perhaps more importantly, the perceived likelihood of prosecution in situations resembling those found to be inadmissible will diminish, undermining the deterrent effect of potential ICC action.
Additionally, as a matter of interpretation, Article 17(1)(d)’s requirement that judges find inadmissible cases of insufficient gravity seems on its face to require a threshold analysis rather than a discretionary determination. Urs asserts that: ‘[a] subjective approach to the assessment of gravity does not require that a situation or case be as serious as any which has already been investigated or prosecuted’ (p. 168). Fair enough. But a threshold requirement would suggest that a situation or case is inadmissible unless it is more serious than one the Court has already found to be insufficiently grave, which would raise the legitimacy issues noted above.
That 17(1)(d) requires a threshold analysis is reinforced by the Statute’s drafting history. When the International Law Commission first considered gravity as an admissibility requirement it was discretionary. The Commentary to the 1994 Draft Code of Crimes against the Peace and Security of Mankind notes:
[t]here were also suggestions that the court should have discretion to decline to exercise its jurisdiction if the case was not of sufficient gravity or could be adequately handled by a national court. This suggestion was explained in terms of ensuring that the court would deal solely with the most serious crimes, it would not encroach on the functions of national courts, and it would adapt its caseload to the resources available.
Yet, when the Rome Statute was adopted, the drafters opted to make gravity a mandatory requirement of admissibility, not a discretionary consideration. As such, if the Prosecutor has discretion to reject a situation based on a determination that, despite meeting the gravity threshold, the situation is nonetheless insufficiently grave to merit the Court’s attention relative to others, that authority must be found elsewhere in the Statute. Article 53’s ‘interests of justice’ seems capacious enough to accommodate such discretion effectively, despite the limitations Urs identifies related to judicial review (pp. 168–69).
Notwithstanding our disagreements about how to interpret the Statute, I wholeheartedly endorse Urs’ view that gravity can be useful in identifying the situations and cases that are the most appropriate subjects of ICC action. But I do not think the factor-based analysis the Court has adopted provides sufficient normative justification for those decisions. Rather, I advocate an approach to selection decisions, including consideration of gravity, that identifies the global interests in adjudication and balances them against any competing interests (Shocking the Conscience, pp. 98–141).
At the end of the day, despite our differences, Urs’ approach to gravity and mine are largely compatible. Although she has greater faith in the legitimating power of a factor-based gravity analysis than I do, we agree that more consistency and transparency in how the Court approaches gravity is necessary. To that end, Urs’ book is indispensable reading. The clarity with which she exposes gravity’s doctrinal nuances, the rigour of her analysis and the importance of many of her recommendations make this book essential reading for the ICC’s prosecutors and judges, as well as scholars seeking to understand gravity’s role in the Court’s work.
Prof. Margaret M. deGuzman is James E. Beasley Professor and Co-Director, Institute for International Law and Public Policy, Temple University Beasley School of Law and Judge, International Residual Mechanism for Criminal Tribunals.