Symposium: Gravity at the International Criminal Court
Gravity at the International Criminal Court:
A Response
By Priya Urs
Published on 8 August 2024
I am grateful to Meg deGuzman, Patryk Labuda and Martha Bradley for generously giving their time to reflect on Gravity at the International Criminal Court. Each of them raises a variety of issues relating to the book’s arguments, methodology and contributions in the light of the practice of the International Criminal Court (ICC, the Court). In particular, deGuzman and Bradley draw attention to the advantages and disadvantages of the Court’s indicator-based approach to the assessment of gravity in Article 17(1)(d), which the book argues should be streamlined for the sake of greater consistency. In this post, I will briefly respond to three issues that arise in the contributions.
As a preliminary remark, it is worth emphasising what I see as an important, if obvious, point of agreement among us: the highly selective nature of investigations and prosecutions at the ICC, necessitated in large part, although not exclusively, by the Court’s limited resources, is in many respects deeply unsatisfactory. This dissatisfaction is with the selectivity of investigations and prosecutions at the Court rather than with any particular legal or policy criterion that may be deployed to justify it. Were the Court to be better resourced in the years to come, I believe we all agree that this would warrant an increase in the number of investigations and prosecutions undertaken by the Office of the Prosecutor. In my view, such an increase would be entirely compatible with the function of the ‘sufficient gravity’ criterion in Article 17(1)(d) I propose in the book, namely to facilitate the allocation of investigative and prosecutorial resources (Gravity at the International Criminal Court, p. 171). At present, however, the task remains how to justify, within the confines of the Rome Statute and its supporting instruments, the Prosecutor’s selection of investigations and prosecutions in the face of limited resources.
Doctrinal Methodology and the Place of Policy Considerations
Labuda raises an important question pertaining to the book’s stated doctrinal methodology, specifically whether ‘the book does, in fact, eschew policy or politics in favour of doctrinal analysis’. He inquires further as to whether the concern underlying the book is ‘a more faithful appreciation of the law’ or ‘the issue of selectivity in international criminal law’. In the first place, the doctrinal methodology undertaken in the book is meant to suggest how the gravity criterion in Article 17(1)(d) is applied under relevant admissibility provisions of the Rome Statute and, where necessary, how it should be applied. The doctrinal methodology is also meant, however, to set the terms of the debate about the possible legal justifications for the selectivity of investigations and prosecutions at the Court. While policy and other normative considerations can and should be part of this discussion, they are only practically relevant insofar as the arguments they support are permitted by a defensible account of the positive law. In short, a doctrinal account is used to show what space is left for various policy and normative considerations, which, as Labuda rightly observes, the book engages with throughout.
An account of the positive law is especially useful in identifying the deficiencies of the various proposals that have been advanced to facilitate the allocation of resources and thereby to justify the selectivity of investigations and prosecutions at the Court (Gravity at the International Criminal Court, pp. 166–169). As deGuzman notes in her post, one such justification is the application of the ‘interests of justice’ criterion in Article 53(1)(c) and (2)(c) of the Rome Statute, which, like the gravity criterion, involves the exercise of some discretion. While there could be good normative reasons to facilitate the allocation of finite prosecutorial resources on this basis (deGuzman, Shocking the Conscience of Humanity, p. 136), rather than through the assessment of the gravity of a case, this use of the ‘interests of justice’ criterion is problematic in light of the much more extensive role of the Pre-Trial Chamber in this context. Where the Prosecutor chooses not to proceed with an investigation or prosecution based on the assessment of the interests of justice, the Pre-Trial Chamber may review the Prosecutor’s decision on its own initiative and, in the event, ‘the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber’ (Art. 53(3)(b), Rome Statute). This implies that it is ultimately the Pre-Trial Chamber, not the Prosecutor, which decides on the allocation of prosecutorial resources, constituting an infringement on the management of these resources by an independent Office of the Prosecutor (Art. 42, Rome Statute; Gravity at the International Criminal Court, p. 169). This being the case, it is possible both to critique the Court’s practice out of concern for its legitimacy and other normative considerations and at the same time to recognise, as deGuzman does, the limitations set by the admissibility framework of the Rome Statute.
The Meaning of ‘Sufficient Gravity’ in Article 17(1)(d)
All three commentators raise the question of the ‘meaning’ or ‘substance’ of the admissibility requirement of the ‘sufficient gravity’ of a case in Article 17(1)(d). Bradley points to the contrast between an understanding that excludes only ‘marginal cases’ (Al Hassan, para. 53) and one focused on investigating and prosecuting ‘only the most horrendous crimes’ (Mitgutsch). Labuda poses the question whether the provision’s use of ‘sufficient’ gravity, as opposed to ‘manifest’, ‘considerable’, or ‘exceptional’ gravity, should not be assigned greater weight in the interpretation of Article 17(1)(d). More generally, he finds that the book ‘omits discussion of how best to understand the substance of gravity’. The role of the drafting history in interpreting Article 17(1)(d) is also raised more than once (and in some detail by deGuzman). To put the matter simply: is there more to be said about the meaning, in general terms, of the admissibility requirement of ‘sufficient gravity’ through the interpretation of Article 17(1)(d), before turning to the question of its application?
My defence of the book’s emphasis on the ‘application’, rather than the ‘interpretation’, of Article 17(1)(d) is that the meaning of the provision is clear: cases that are ‘not of sufficient gravity to justify further action by the Court’ shall be inadmissible. There is no ambiguity as to the meaning of the text—no two ways to read it—requiring clarification through treaty interpretation (Gravity at the International Criminal Court, pp. 11–13). Instead, the difficulty with which we are concerned is the ‘open-texture’ or generality of the legal language (Hart, The Concept of Law, p. 128) employed in Article 17(1)(d), specifically through the use of the term ‘sufficient’, meaning ‘enough’. What is really at issue is how to characterise the facts of a potential case or case by reference to the requirement of its ‘sufficient gravity’, a task which would not, in my view, be aided (more than the book already suggests) by the ‘interpretation’ of Article 17(1)(d). Instead, the open-textured language in Article 17(1)(d) implies that its application to facts leaves discretion to whoever is required, under relevant admissibility provisions, to apply it (Hart, The Concept of Law, p. 127). In some contexts, it is the Prosecutor (Arts. 15(3), 53(1)–(2)), in others the Pre-Trial or Trial Chamber (Art. 19). I agree with Labuda in that the choice of terminology in Article 17(1)(d) bears on how much discretion is involved in its application. Were Article 17(1)(d) to refer to ‘manifest’, ‘considerable’, or ‘exceptional’ gravity, the exercise of discretion in the application of the provision might have been more constrained. Ultimately, we all agree that much more assistance to the task of applying Article 17(1)(d) is lent by an assessment of the Court’s practice.
I will spare the blog’s wider audience an extensive review of the drafting history of Article 17(1)(d) of the Rome Statute (see Gravity at the International Criminal Court, pp. 8–10) but would like to respond, in this connection, to a point deGuzman raises in her post. deGuzman rightly notes that, earlier discussions within the International Law Commission notwithstanding, the gravity criterion was ultimately made ‘a mandatory requirement of admissibility’ rather than a ‘discretionary consideration’. I agree fully that the Rome Statute makes the application of Article 17(1)(d), whether by the Prosecutor or the Pre-Trial or Trial Chamber, mandatory under relevant admissibility provisions. In other words, there is no choice in whether or not to apply Article 17(1)(d). For the reasons set out above, however, this conclusion does not, in my view, exclude that how facts are actually characterised in the application of the open-textured requirement in Article 17(1)(d) involves the exercise of discretion.
The Call for Intense Judicial Scrutiny of Prosecutorial Decisions Not to Proceed
The drafters of the Rome Statute made limited provision for Pre-Trial Chamber review of prosecutorial decisions not to proceed with an investigation or prosecution. The main preoccupation among many states had been to prevent the Prosecutor from proceeding with frivolous or politically motivated cases, rather than to mandate the investigation and prosecution of all other cases falling within the jurisdiction of the Court. In this, the drafters failed to foresee that, in reality, ‘[t]he choice … is not so much between grave and not-so-grave crimes, but between different shades of the most atrocious crimes’ (Mégret, p. 213). In the absence of clarity as to the standard of review to be applied by the Pre-Trial Chamber in its review of a prosecutorial decision not to proceed, Labuda asks whether it would not have been better to argue for intense judicial scrutiny of prosecutorial assessments of gravity (e.g., de novo review), rather than deferential review for abuse of discretion. I will not recount here the arguments I advance in the book for why review for abuse of prosecutorial discretion is, in my view, the most appropriate standard of Pre-Trial Chamber review under Article 53(3) (Gravity at the International Criminal Court, pp. 107–114). I arrived at this conclusion by balancing prosecutorial independence and accountability, among other considerations, and I acknowledge that others might choose to strike a different balance (Gravity at the International Criminal Court, pp. 101–107). In this sense, part of the book’s contribution on judicial review is making clear what is at stake under relevant provisions.
Instead, I wish to juxtapose the concern for greater prosecutorial accountability vis-à-vis decisions not to proceed with investigations and prosecutions on referral with what has been, in the Court’s recent jurisprudence, the complete erasure of prosecutorial accountability in respect of decisions to proceed with investigations proprio motu. In its 2020 decision on the situation in Afghanistan, the Appeals Chamber, going against the grain of the Rome Statute, declared that a Pre-Trial Chamber deciding whether to authorise the initiation of an investigation proprio motu must review neither the Prosecutor’s assessment of admissibility nor the assessment of the interests of justice (Judgment on the Appeal against the Decision on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, para. 35; Gravity at the International Criminal Court, pp. 92–95). To my knowledge, this new reality has not been questioned in the scholarship (except by one other commentator), even though it has come at the cost of disregarding the crucial condition on which states agreed to confer on the Prosecutor the power to initiate investigations proprio motu: judicial review. In this light, one wonders whether calls for more intense judicial scrutiny of prosecutorial decisions not to proceed under Article 53(3) are really motivated by a desire for greater prosecutorial accountability. Could it be, instead, that paving the way for investigations and prosecutions is so important as to support dispensing with prosecutorial accountability in one context (Art. 15(4)) and, at the same time, calling for its indispensability in another (Art. 53(3))?
Concluding Thoughts
The Rome Statute’s admissibility framework is riddled with inconsistency and vagueness, which has only been compounded by the Court’s practice to date. My argument for using the requirement of ‘sufficient gravity’ in Article 17(1)(d) to facilitate resource allocation is not meant to resolve every insufficiency in the text of the Statute. Nor is it by any means a perfect solution to the problem of resource scarcity. That being said, I believe the book’s proposal is one that sits safely within the boundaries of the Rome Statute and its supporting instruments, is capable of practical implementation and is, to the extent permitted by its account of the positive law, further supported by policy and other normative considerations. It is also more persuasive than are other proposals for allocating resources through the application of other legal or policy criteria.