Symposium: Gravity at the International Criminal Court
Law versus Policy? Exploring the Meaning of Gravity before the International Criminal Court
By Patryk I. Labuda
Published on 7 August 2024
Priya Urs’ new book is an important contribution to the literature on the International Criminal Court (ICC or Court). In under two hundred pages, she manages to capture the ins and outs of the ICC’s first 20 years of case law and advances an ambitious argument about the function of gravity in the Rome Statute. Priya argues that, instead of gravity merely serving to exclude ‘marginal cases’ from investigation and prosecution by the ICC, the Prosecutor’s ‘subjective and discretionary application’ (p. 13) of this concept should facilitate ‘the allocation of investigative and prosecutorial resources’ and hence ‘offers the most convincing basis on which to justify the selectivity of investigations and prosecutions’ (p. 11). Put differently, her main claim, as I understand it, is that the admissibility criterion of gravity can and should be doing more work than it currently does at the ICC—instead of being an admissibility filter of secondary importance, the Rome Statute can be credibly interpreted and applied to give gravity a more ambitious (global) governance function that, in turn, allows the Prosecutor to confront the contentious issue of selectivity in international criminal law.
I am sympathetic to much of Priya’s analysis, though I come to these topics from a different methodological perspective. I am not always persuaded it is possible to do the kind of positivist analysis that Priya practices, nor was it always clear to me that the book does, in fact, eschew policy or politics in favour of doctrinal analysis. The questions I ask below and my friendly critique of some arguments should be read with that overarching remark in mind. This post is an invitation on my part to push the conversation further on a few substantive and methodological questions.
To begin with, what may be most striking about this well-structured and elegantly written book is the richness and clarity of Priya’s analysis of the ICC’s gravity practice. This is no mean feat. When reading the book, one can be misled into thinking that the issue of gravity has straightforward answers when, in fact, the opposite is true. At the same time, as I read the book, I kept coming back to the following questions: what is the problem that Priya seeks to solve? Is she interested in a more faithful appreciation of the law? Or is this book (also) driven by other non-doctrinal concerns, notably the issue of selectivity in international criminal law with which Priya introduces the entire book? Equally important: who is this book for? International criminal scholars? ICC staff? Victims? All of the above?
These questions may seem secondary but I pose them at the outset because Priya adopts a positivist, doctrinal approach, which notably rejects that anything can be gleaned from the object and purpose of the Rome Statute (pp. 11–14). Priya tells us she is interested not in interpretation, but application of the law, although she then says that some rules on treaty interpretation ‘logically, inform, mutatis mutandis’ her task, in particular textual analysis, read in context, with a view to structural considerations, and the drafting history. Based on the following, she concludes that Article 17(1)(d) can be assumed to be ‘open textured’, which in turn means ‘its application involves the exercise of discretion’.
As a preliminary remark, I found myself wondering if the book did not skip over the meaning and substance of ‘sufficient gravity’, read in context, in Article 17(1)(d) a little too quickly. Priya’s argument seems to be that little can be gleaned from parsing the meaning of the words themselves, and that everything thus boils down to application—specifically which actors are entitled to decide how to apply ‘sufficient gravity’ to the facts in casu. But does it not matter that the drafters of the Rome Statute used the phrase ‘sufficient gravity’ as opposed to, for example, ‘manifest’, ‘considerable’ or ‘exceptional’ gravity? Article 17(1)(d) would be logically compelling with the latter formulations, yet the meaning and function of gravity would arguably be different. I mention this because, at first blush, this kind of a contrario textual reasoning might not seem to support Priya’s overarching argument against Al-Hassan’s reading of gravity as excluding ‘marginal cases only’ standard. As I have never analysed the scholarship on Article 17(1)(d), I wanted to ask if the choice of wording in this provision would not ultimately make a difference to the disputes currently before the ICC?
Notwithstanding my preliminary comment, Priya’s main argument is that the key to resolving what gravity should mean lies not so much in the text of Article 17(1)(d), but in how it is understood and applied by the Court’s Prosecutor and/or its judges. In other words, focusing on the text of Article 17(1)(d) as such might ultimately prove inconclusive and, as a result, a doctrinal analysis is used to ascertain the correct procedural roles under the Rome Statute of both the Prosecutor and its judges in determining the substance of ‘sufficient gravity’—rather than the meaning of those two words as such.
I think this is largely persuasive from a doctrinal perspective, but I found myself musing at times just how agnostic the book seems to be about the substance of ‘sufficient gravity’. On this point, Priya canvasses the jurisprudence to propose a binary opposition between, on the one hand, an ‘objective’ assessment of gravity that corresponds to purely quantitative factors (notably numbers of deaths) and, on the other hand, a ‘subjective’ assessment that combines both quantitative and qualitative elements. An equation of ‘objective’ with quantitative—contra the qualitative/quantitative ‘subjective’ alternative—raises methodological (and disciplinary) questions that I will not get into. However, Priya’s conclusion that assessing gravity is necessarily a ‘subjective’ exercise merits more attention (pp. 72–79); not because this in an unpersuasive approach but rather because the book then does two things: (1) omits discussion of how best to understand the substance of gravity; and (2) proceeds to argue that, in essence, it is the almost unfettered ‘subjective’ discretion of the Prosecutor to decide what ‘gravity’ means that is decisive under the Rome Statute. Put differently, given that Priya will later construe the judges’ power to review prosecutorial discretion extremely narrowly, the core issue is not what gravity should reasonably (substantively) mean, but rather who has the (procedural) power to decide subjectively what gravity means. It would be unfair to critique Priya for not discussing the substantive meaning of gravity in more depth (she openly declines to do so, acknowledging the work of scholars like Margaret deGuzman). Nevertheless, one walks away from the book, especially from Chapter 2, feeling that disputes over the relative gravity of situations and cases, notwithstanding the prosecutorial and judicial parameters developed over the past 15 years (carefully and persuasively analysed), do not yield right or wrong substantive answers. May we safely assume that gravity ultimately lies ‘in the eye of the beholder’?
This agnosticism made me a little uncomfortable, but this observation brings me to two more fundamental questions about Priya’s endorsement of a ‘subjective’ approach to the assessment of gravity, which she vests first and foremost in the Prosecutor.
First, the book’s analysis of the Rome Statute’s procedural norms leads her to the conclusion that ICC judges may question prosecutorial discretion in regard to gravity only in cases of ‘abuse of discretion’ (pp. 107–115; 134–153), which she endorses over more invasive forms of judicial control like, e.g., ‘de novo review’. But what does this mean in practice? How would this standard for reviewing prosecutorial discretion work concretely if, say, the ICC Prosecutor had, to this day, opened only investigations, and brought only cases, from Africa (a suggestion made recently to the current Prosecutor)? Given what has transpired in the world in the last 20 years, most observers would find an application of gravity that criminalises only Africans very problematic. Yet I struggle to see how the ICC’s judges could meaningfully apply the ‘abuse of discretion’ standard advocated by Priya to change the Prosecutor’s decision to not open investigations or not bring cases outside Africa.
Although Priya hints at it in the book, the problem seems to be that the drafters of the Rome Statute imposed judicial safeguards to prevent the Prosecutor from undertaking some actions, notably in cases of proprio motu investigations, but failed to foresee the opposite problem: a Prosecutor who refuses to take action while justifying such decisions by resorting to open-ended provisions like ‘insufficient gravity’ or ‘unwilling genuinely to prosecute’ (Article 17(2) of the Rome Statute). Priya invokes the concept of ‘good faith’ when discussing prosecutorial choices several times in the book, but does not expand on its implications. Even after reading the book, I still struggle to see how her analysis of the proper function of gravity could meaningfully prevent ‘bad faith’ discretionary prosecutorial inactivity. Sure, the judges may be able to apply ‘abuse of discretion’ to prevent the Prosecutor from prosecuting a Russian foot soldier when Venezuela has arrested and offered to surrender Vladimir Putin to The Hague, but can ‘abuse of discretion’ play any role in the ICC’s practice beyond such improbable and clear-cut gravity scenarios? I am sympathetic to Priya’s critique of the existing scholarship on ‘relative gravity’ or the Al-Hassan’s gravity precedent being so broad as to be meaningless, but I wonder if the book has not served up a re-interpretation of Article 17(1)(d) so broad as to render its policy and practice recommendations (Chapter 5) somewhat perfunctory?
Second, the above interrogation brings me back to the book’s overarching doctrinal framework and how it applies to the function of gravity (pp. 26–29 and Chapter 5). The function of gravity is a central and recurring theme in this book, whose overall goal—as Priya explains at the outset—is ‘to justify, in a manner faithful to the Rome Statute and its supporting documents, the selectivity of investigations and prosecutions at the Court’ (p. 3). However, it is difficult to address the ICC’s selectivity without touching on questions of politics or policy, and it was not always clear to me—notwithstanding Priya’s masterful dissection of ICC jurisprudence—what role such considerations played in this book. For starters, to justify her approach to gravity as a function of subjective prosecutorial discretion, Priya regularly invokes ‘resource considerations’, questions of ‘judicial economy’, or prudential arguments for deference to the Prosecutor as the entity better placed to make ‘fact-finding’ determinations than the judges. These reasonably appear to be policy considerations. The book even draws comparisons with other international courts and tribunals, which raised the question for me why analogies with investment tribunals should matter more for the practice of gravity before the ICC than, for example, the underlying ‘object and purpose’ of the Rome Statute?
Full disclosure: I am unpersuaded one can interpret or apply multilateral treaties like the Rome Statute without regard to their ‘object and purpose’ (for a helpful analysis, see here). However, the book’s repeated invocations of non-legal rationales to justify (essentially unfettered, subject to de minimis abuse of discretion review) prosecutorial discretion—as opposed to ICC discretion, which could consist of both prosecutorial choices and meaningful judicial review—left me wondering how Priya understands the relationship between an avowedly doctrinal approach and policy considerations like ‘resource allocation’ or ‘judicial economy’. Another way to think about this is as follows: why would the function of gravity not be better served by giving judges much wider authority to review prosecutorial discretion, where this is not foreclosed by the Rome Statute’s text, which would in turn go a long way to enhacing the legitimacy of the Court’s ever-contentious selectivity choices?
To be clear, I do not have strong views on the proper function of ‘gravity’ at the ICC (a topic I have not studied), but I ask these questions mainly because my work on the proper function of complementarity drew me in the opposite direction. After reviewing the Rome Statute and the ICC’s jurisprudence, I argue for a contextual, teleological approach to the other dilemma of ICC admissibility, wherein both the Prosecutor and judges should meaningfully weigh in on open-ended questions of forum allocation. While Priya provides strong doctrinal arguments for wide prosecutorial discretion in regard to gravity, I worry about their practical implications: is there not a risk that, by effectively excluding the bench from inherently contentious selectivity choices, the book’s arguments will inadvertently create greater legitimacy problems for the ICC down the line?
These comments and questions are meant as an invitation to reflect on certain choices before the ICC. Priya’s book makes various other contributions to the scholarship—and presumably the ICC’s future practice—for instance through her poignant observations about ‘greatest responsibility’ considerations or the redundancy of the ‘nature’ dimension of the gravity assessment. These and other sharp analyses are too many to be commented on in a blog post. I am convinced that, going forward, no ICC staffer or scholar will be able to work on gravity without addressing Priya’s careful and methodical arguments.
Dr. Patryk I. Labuda is an Assistant Professor of international law and international relations at Central European University (incoming September 2024) and a research fellow on the ‘Memocracy’ project at the Polish Academy of Sciences, Institute of Law Studies.