Symposium: Gravity at the International Criminal Court
Gravity at the International Criminal Court: Admissibility and Prosecutorial Discretion by Priya Urs: A significant contribution offering a refreshing guidance towards the assessment of the gravity criterion to insure prosecutorial consistency
By Martha M Bradley
Published on 8 August 2024
Gravity at the International Criminal Court: Admissibility and Prosecutorial Discretion by Priya Urs is a refreshing response to a lacuna in the literature concerned with the gravity criterion for trial admissibility under Article 17(1)(d) of the Rome Statute. The term ‘refreshing’ is employed to describe the monograph as it does not only systematically and rigorously explore Article 17(1)(d), but it contributes original thought on the application and function of the ‘gravity criterion’. The purpose of Article 17(1)(d) of the Rome Statute is to aid the Prosecutor in determining whether cases are ripe for investigation and to aid Pre-Trial Chambers in determining if cases brought before the International Criminal Court (ICC) are ‘admissible’.
The book responds to the legal question of ‘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 [to prosecute]’. Urs provides practical guidance as to how to make the gravity assessment under Article 17(1)(d) of the Rome Statute by employing select indicators which are critically needed.
Urs’ book promotes clarification about when a case is inadmissible due to the lack of sufficient gravity to investigate an alleged offence under International Criminal Law (ICL). Surprisingly, the Rome Statute itself lacks a provision specifying exact indicators of when the minimum threshold of gravity is met. Similarly, the Statute’s drafting history does not offer much guidance either. Urs, in agreement with the Defense in the Al Hassan Case (see here) remarks that a consequence of the open-textured nature of Article 17(1)(d), which essentially invites discretion, may give rise to ‘a lack of consistency and attendant predictability in the assessment of admissibility’. Others observe that uncertainty about the gravity threshold could make the Prosecutor seem biased.
This contribution, therefore, specifically focuses on Urs’ views towards understanding the threshold criterion inherent in the notion of ‘gravity’ under Article 17(1)(d) of the Rome Statute.
Taking a step back: Introducing the ICC, the core crimes and the gravity threshold
The ICC is the only ‘global’ permanent international criminal court, its founding treaty being the Rome Statute, with jurisdiction over the core crimes listed in Article 5 of the Statute. The term ‘core crimes’ is an umbrella term for four international crimes: genocide, aggression, crimes against humanity and war crimes. Article 1 of the Rome Statute states that the ICC ‘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’. Article 1 thus introduces a gravity threshold by reference to ‘the most serious crimes of international concern’.
As Mitgutsch explains, the aim of this provision is to sift through situations and cases in order to identify only the ‘most horrendous crimes’ to be investigated and prosecuted before the ICC. Article 17(1)(d) specifically excludes cases where ‘[t]he case is not of sufficient gravity to justify further action by the Court’. This gravity threshold is further expressly included as part of the admissibility criteria codified in Article 17 of the Rome Statute.
Urs’ seminal contribution: Streamlining the gravity criterion
On the issue of streamlining, Chapter 2 carefully examines the four indicators of gravity developed in the Prosecutor’s 2013 Policy Paper on Preliminary Examinations and the additional fifth element introduced subsequent to this policy paper.
The four indicators of gravity are: the scale of the crimes allegedly committed, the nature of crimes specifically committed (for example crimes committed against children), the manner of commission of the alleged crimes (for example the means employed to execute the crime) and the impact of the alleged offences (such as the suffering of victims). Urs systematically interrogates the Prosecutor’s and the Pre-Trial Chambers’ approach to promote a better understanding of these indicators’ content. Urs also examines a fifth, additional indicator not listed in the Prosecutor’s 2013 Policy Paper on Preliminary Examinations. This indicator concerns those who bear the greatest responsibility, i.e., the perpetrator who is most responsible for the alleged commission of a core crime. This fifth indicator was first introduced by the Pre-Trial Chamber in the Situation in Kenya. This fifth element necessitates a generic examination of whether those who are the object of the investigation are indeed those who may bear the greatest responsibility for the alleged crimes committed. In her assessment of the five criteria, Urs remarks that Pre-Trial Chambers have been inconsistent both in unpacking each of the criteria and in applying them.
Similarly to her assessment of the gravity indicators to a situation, Urs moves to assess these indicators in the context of a specific case. Again, she finds inconsistency in the application of these indicators by Pre-Trial Chambers. She states that:
[m]ost conspicuously, they[, i.e., Pre-Trial Chambers] have not considered the nature of the crimes as an indicator of gravity, raising the question of its relevance as a matter of law. In contrast, a wide range of considerations pertaining to the scale, manner of commission, and impact of the crimes have contributed to the Pre-Trial Chambers’ gravity assessments.
Urs’ examination also reveals that in the majority of cases the fifth requirement has been ignored.
Part 2.4.1 of Urs’ book is particularly helpful as guidance to the Prosecutor and Pre-Trial Chamber judges. Urs carefully analyses approaches towards the indicators and proposes guidance as to how these indicators should be assessed, to promote greater consistency and, consequently, greater legal certainty. Her contribution towards the ‘scale’ and ‘manner’ indicator is especially notable. In her assessment of the ‘scale’ indicator, Urs remarks that it is better to assess alleged crimes with reference to multiple potential cases arising of a single situation rather than to assess a single situation as a whole. Urs also unpacks why the ‘nature’ indicator is superfluous. In her argument for doing away with the ‘nature’ indicator, Urs considers that, when initiating investigations into situations and cases, there is very little to show that Pre-Trial Chambers have attached any significance to the criterion of the ‘nature’ indicator. Often there is no consideration of this indicator in Pre-Trial Chamber decisions. Urs shows that there is overlap between the ‘nature’ indicator and the ‘manner’ indicator, too, especially when the indicators touch on the vulnerability of victims.
Urs convincingly argues that not all the indicators of gravity articulated and endorsed by the Prosecutor, Pre Trial-Chambers and the Appeals Chamber are relevant to an assessment under Article 17(1)(d) of the Rome Statute. In her view, there are three constitutive indicators that must be present to meet the minimum threshold of gravity to initiate an investigation. These three indicators are: the scale of the alleged crimes, the manner of their commission and their impact. Limiting constitutive indicators for the gravity assessment does not, as Urs argues, only eliminate duplication and overlap but it ‘avoids superfluidity’ and promotes judicial economy.
The ICC and Africa: the need for legal clarification concerning prosecutorial selectivity
It is pivotal for the law to be clear as to which cases may be selected for prosecution and transparent as to compliance with such criteria by the Prosecutor. Clarity and transparency ought to prevent future frictions between the ICC and regional organisations such as the African Union (AU). The relationship between the ICC and Africa is a good case study to show how the gravity criterion can have real-world impact and why, therefore, Urs’ work is timely and noteworthy.
In the past, members of the AU suggested that the ICC has focused disproportionately on prosecuting cases from Africa. Friction between AU members and the ICC was heightened when several of the former, who are also parties to the Rome Statute, refrained from arresting the then-President of Sudan, Omar Al-Bashir, in accordance with an ICC warrant issued for his arrest. Tensions peaked in early 2017, when the AU called for a mass withdrawal by its member states from the Rome Statute. In response, South Africa, The Gambia and Burundi issued notices to withdraw, but only Burundi ended up withdrawing from the Rome Statute. Both South Africa and Gambia have since re-emphasised its commitment to the Rome Statute.
A clear comprehension of the gravity threshold under Article 17(1)(d) of the Rome Statute is critical to achieve clarity, transparency and legal certainty concerning prosecutorial selection of cases. As in the African context above, Urs’ indicators may contribute to clarifying which cases are prosecutable and, in the future, may also remove arguments of bias towards prosecution of African states.
Final remarks
In her concluding remarks, Urs expresses the hope that:
[t]hese various clarifications may serve as guidance in ensuring greater consistency in the decisions whether to investigate and whether to prosecute international crimes at other international and national criminal courts.
In her work, Urs was meticulous and disciplined. She both fleshed out and streamlined the three indicators she proposes for employment in Article 17(1)(d). Her seminal contribution will provide valuable guidance to those tasked with deciding whether to investigate or prosecute core crimes at the ICC. The application of these three indicators will hopefully lead to greater consistency in deciding which cases to prosecute, and which not to prosecute, before the ICC.
Dr. Martha M. Bradley is an Associate Professor in the Department of Public Law, an associate researcher to the NRF SARCIL Chair at the University of Johannesburg, South Africa, and an external expert at the Centre for International Humanitarian and Operational Law at the Palaćky University, Czech Republic. She can be contacted at mbradley@uj.ac.za.