Symposium: Gravity at the International Criminal Court
Gravity at the International Criminal Court:
An Introduction
By Priya Urs
Published on 6 August 2024
I began thinking about the selectivity of the investigation and prosecution of international crimes in 2014, when I worked with the Afghan Independent Human Rights Commission to strengthen its role in monitoring human rights violations across the country. In reality, the Commission was often dealing with allegations of international crimes. My colleagues at the Max Planck Foundation for International Peace and the Rule of Law worked in not dissimilar contexts: Cambodia, Colombia, Mali, Sudan, South Sudan and other parts of the world where people had suffered or continued to suffer as a result of armed conflict or other forms of violence. It was impossible to ignore the contrast between the sheer geographical scope of allegations of relevant conduct and the relatively limited capacity for their investigation and prosecution, whether before international or national criminal courts.
At around the same time in The Hague, Fatou Bensouda, then Prosecutor of the International Criminal Court (ICC, the Court), was facing a backlash—judicial and otherwise—following her 2014 decision not to proceed with an investigation into the ‘Mavi Marmara’ or ‘Gaza Flotilla’ incident, including on the ground that the ‘sufficient gravity’ requirement in Article 17(1)(d) of the Rome Statute was not met. The Pre-Trial Chamber, in its review of the Prosecutor’s decision, ruled that the Prosecutor had erred in several ways in her assessment of gravity and requested that she reconsider her decision ‘as soon as possible’ (para. 50). By the time I started my doctoral research in 2017, the disagreement between the Office of the Prosecutor and the relevant Pre-Trial Chamber was on full display. Reflecting on the role of the ICC Prosecutor more generally, it seemed to me that every decision whether to investigate and whether to prosecute could be criticised, whether inside or outside the courtroom, as either going too far or not going far enough. How, I wondered, could a Prosecutor operating within the legal framework of the Rome Statute and with finite resources defend his or her selection of investigations and prosecutions against such criticism? Where was the legal justification for this selectivity to be found? These questions set the backdrop for my work on the application and function of the requirement of the ‘sufficient gravity’ of a case in Article 17(1)(d) of the Rome Statute in what is now Gravity at the International Criminal Court: Admissibility and Prosecutorial Discretion. They are also at the core of the 2020 report of the Independent Expert Review of the International Criminal Court and the Rome Statute System commissioned by the ICC Assembly of States Parties.
The Rome Statute, its supporting instruments and their drafting history do not make sufficiently clear what is the function of the admissibility requirement of ‘sufficient gravity’ in Article 17(1)(d) of the Statute, whether in the context of the initiation of an investigation into a ‘situation’, comprising one or more potential cases, or the prosecution of an individual ‘case’ arising out of a situation. The text of Article 17(1)(d) provides only that a case shall be inadmissible where it is ‘not of sufficient gravity to justify further action by the Court’. As such, the Statute leaves it to the various Chambers of the Court to articulate what they consider to be the function of the gravity criterion. In the Appeals Chamber’s authoritative view, the function of the gravity criterion is to exclude ‘those rather unusual cases when conduct that technically fulfils all the elements of a crime under the Court’s jurisdiction is nevertheless of marginal gravity only’ (Al Hassan, para. 53). Contrary to this view, the book argues that the function of the gravity criterion in Article 17(1)(d) in the context of the Prosecutor’s decisions whether to investigate and to prosecute respectively is not to exclude only ‘marginal cases’, but to facilitate the allocation of finite investigative and prosecutorial resources.
My argument builds on an assessment of twenty years of the ICC’s practice in the application of Article 17(1)(d) under relevant admissibility provisions of the Statute: Articles 15 and 53(1) in relation to the decision whether to initiate an investigation into a situation; Article 53(2) in relation to the decision whether to prosecute a case; and Article 19 in relation to the admissibility of a case selected for prosecution. I briefly highlight below the book’s key arguments in support of its central claim, that the function of the admissibility requirement of ‘sufficient gravity’ in Article 17(1)(d), when applied in the first instance by the Prosecutor, is to facilitate the allocation of resources.
The various indicators of gravity suggested by the Office of the Prosecutor—the scale, nature, manner of commission and impact of the alleged crimes—and the requirement, imposed by some Chambers, that the potential case or case address those bearing greatest responsibility for the crimes, have been applied inconsistently in the practice of both the Prosecutor and the Chambers of the Court. By suggesting which of these indicators is actually relevant to the admissibility assessment of sufficient gravity under Article 17(1)(d), the book aims to demonstrate that the application and weighing of the relevant indicators is a subjective exercise that necessarily involves the exercise of discretion. Where the assessment is made by a Prosecutor required to ‘choose from many meritorious complaints … rather than to weed out weak or frivolous ones’, this necessarily involves comparing the situation or case under consideration with others that might equally draw from his or her limited resources (Arbour, p. 213).
Notwithstanding the wide discretion afforded the Prosecutor in the application of Article 17(1)(d) as part of the respective decisions whether to investigate and to prosecute, the Rome Statute provides for Pre-Trial Chamber oversight of certain prosecutorial decisions on admissibility. The Pre-Trial Chambers may review a decision by the Prosecutor not to proceed with an investigation or a prosecution on the basis of inadmissibility under Article 53(3) and—in my view (pp. 91–95), if not the Appeals Chamber’s—also review the Prosecutor’s finding of admissibility as part of the decision whether to authorise the initiation of an investigation proprio motu under Article 15(4). The appropriate standard of review of the Prosecutor’s admissibility decisions is left to the relevant Pre-Trial Chamber, but to date no consistent approach has emerged in practice. The book argues for the appropriate standard of review under each provision, each justified by weighing the various considerations in favour of prosecutorial discretion, on the one hand, and judicial oversight, on the other. The analysis also draws from the practice of other international courts and tribunals to support the case for deference to the Prosecutor as the primary finder of fact. For slightly different reasons in each context, I ultimately argue for a deferential review for ‘abuse of discretion’ under both Article 53(3) and 15(4). This permits the Pre-Trial Chamber to assess whether the Prosecutor abused his or her discretion by failing to apply relevant indicators of gravity, omitting to consider information relevant to the assessment, or arriving at a decision based on extraneous considerations, including by acting in bad faith or on improper motives.
Ultimately, the discretionary nature of the gravity assessment under Article 17(1)(d) of the Statute, combined with deferential Pre-Trial Chamber review for abuse of discretion in its application by the Prosecutor, suggests that gravity may be used to facilitate the allocation of resources in the initiation of investigations and prosecutions and, as a result, support the inadmissibility of more than only the most marginal cases. Other commentators, while agreeing on the highly selective nature of the Prosecutor’s investigations and prosecutions, prefer to situate this discretion elsewhere. The final chapter of the book explains why the gravity criterion for admissibility in Article 17(1)(d) is better suited to this allocation function than are other criteria proposed in the literature, namely the assessment of the ‘interests of justice’ under Article 53(1)(c) and (2)(c) or the policy criterion of ‘relative gravity’ suggested by some commentators as applicable over and above the admissibility requirement of ‘sufficient gravity’ in Article 17(1)(d).
Each of the commentators contributing to this symposium brings a wealth of expertise to situate this subject in its wider context. Prof. Margaret M. deGuzman, James E. Beasley Professor and Co-Director at the Institute for International Law and Public Policy, Temple University Beasley School of Law and Judge at the International Residual Mechanism for Criminal Tribunals, is the author of Shocking the Conscience of Humanity, a comprehensive theoretical account of the notion of the gravity of crimes as a justification for, and as lending legitimacy to, the discipline of international criminal law. Dr. Patryk I. Labuda, Assistant Professor at the Central European University from September 2024 and Research Fellow at the Polish Academy of Sciences, Institute of Law Studies, is a leading commentator on the ICC’s complementary criteria for admissibility and on the interaction between international and national criminal courts generally, having himself recently published the monograph International Criminal Tribunals and Domestic Accountability. Dr. Martha M. Bradley, Associate Professor at the Faculty of Law, University of Johannesburg, writes extensively across the law of armed conflict, international criminal law and regional security in Africa, and has particular expertise in a range of armed conflicts across the continent. I thank them for taking the time to engage with the book and look forward to the discussion.
My thanks also to the editors at CIL Dialogues for hosting this symposium.