The International Criminal Court's gravity jurisprudence at ten. (Symposium: The International Criminal Court at Ten)

• Published date: 22 September 2013
• Author: Deguzman, Margaret M.
• Date: 22 September 2013

I. INTRODUCTION

In taking stock of the work of the International Criminal Court (the "ICC" or the "Court") in its first ten years, one of the most important questions to ask is how the Court has approached the task of determining which cases fall within its mandate. How the judges approach this task will have significant consequences for the ICC's developing role in the global legal order. A narrow approach to the Court's mandate would limit the institution's ability to achieve the important goals to which it aspires, in particular, the prevention of serious crimes. On the other hand, a broad approach could conflict with widely held expectations of the Court's role, and thus undermine the institution's legitimacy. (1)

The ICC was established to adjudicate "the most serious crimes of concern to the international community as a whole." (2) This category is given content in the ICC's Rome Statute, which limits the Court's jurisdiction to war crimes, crimes against humanity, genocide, and aggression. (3) Except for aggression, which remains a work in progress, the Rome Statute defines each of these crimes, (4) and the "Elements of Crimes" provide further specifics. (5) Nonetheless, these documents leave the ICC judges significant discretion to determine which crimes are serious enough to merit the Court's attention. In particular, the Statute requires the judges to deem inadmissible cases within the Court's jurisdiction that are "not of sufficient gravity to justify further action by the Court." (6) This requirement is known as the gravity threshold for admissibility.

This Essay analyzes the Court's early jurisprudence interpreting the gravity threshold for admissibility. It argues that the threshold, while useful in garnering support for ratification of the Rome Statute, now seems destined to play a minor role in determining the ICC's reach. While there are multiple possible explanations for this development, (7) an important doctrinal cause identified in the jurisprudence is that the gravity threshold for admissibility is in tension with the Rome Statute's provisions regarding jurisdiction. At least with regard to the admissibility of cases, (8) the judges have concluded that interpreting the gravity threshold to exclude certain types of defendants or crimes from the Court's reach would amount to an impermissible revision of the Court's jurisdiction. To avoid this outcome, the judges have developed a flexible multi-factor approach to the gravity threshold that enables them to justify admitting virtually any case within the Court's jurisdiction.

The Essay concludes by arguing that, in light of the tension between admissibility and jurisdiction, the judges are right to relegate the gravity threshold to a minor role in determining the cases the Court adjudicates. To the extent the judges seek to limit the ICC's reach, they should do so by interpreting the Court's jurisdictional provisions directly rather than through the back door of admissibility.

II. GRAVITY THRESHOLD JURISPRUDENCE

Although the ICC's founders agreed that the institution's mandate should be limited to the most serious crimes of global concern, they did not share a common vision of which crimes fit that description. (9) Some states and many members of the influential community of nongovernmental organizations envisioned a criminal court for the promotion of human rights norms with a broad subject matter jurisdiction. (10) Other states were more protective of national jurisdiction and felt the ICC's reach should be restricted to crimes on the scale of the Holocaust, the Rwandan genocide, and ethnic cleansing in the former Yugoslavia. (11) The Rome Statute bridges this divide, in part, by including a gravity threshold for admissibility. (12) The Statute leaves the concept of gravity ambiguous, allowing states with divergent visions of the Court's role to believe, or at least hope, that their vision will prevail.

The Rome Statute thus relegates to the judges the task of interpreting the concept of gravity and, in particular, deciding how the gravity threshold relates to the Statute's provisions regarding jurisdiction. Procedurally, the question comes before the judges at various stages. First, when the Prosecutor seeks to initiate an investigation of his or her own accord, the judges must determine whether the cases likely to be prosecuted in the situation meet the gravity threshold. (13) Second, when a state party or the United Nations Security Council ("Security Council") refers a situation to the Court, the Prosecutor can decide not to investigate or prosecute based on insufficient gravity. (14) In that case, the referring entity can request judicial review of the decision, and the judges can ask the Prosecutor to reconsider. (15) Third, once the Prosecutor brings a case, the accused or a state with jurisdiction may challenge the admissibility of the case based on insufficient gravity, or the judges may raise the issue of their own accord. (16) The gravity threshold is thus applied to situations in the first instance and later to particular cases.

In the first ten years of the Court's operation, the judges have interpreted and applied the gravity threshold for admissibility on several occasions. These early decisions, while limited in number and scope, nonetheless indicate that the judges are inclined to require only minimal gravity for admissibility beyond what is inherent in the Rome Statute's provisions regarding jurisdiction.

A. Lubanga/Ntaganda Arrest Warrant Decision

The most important holding regarding the gravity threshold for admissibility--indeed the only holding from the Appeals Chamber--came in the Court's first case. In the situation in the Democratic Republic of Congo, the Prosecutor applied to Pre-Trial Chamber I ("PTC I") for arrest warrants for two men accused of having committed war crimes: Thomas Lubanga and Bosco Ntaganda. Although the Prosecutor did not raise the question of admissibility, PTC I decided that to issue an arrest warrant, it must first ascertain whether the proposed case is admissible. (17) The Chamber thus considered the gravity threshold for admissibility on its own motion.

PTC I began by noting that since the Court's subject matter jurisdiction is already limited based on gravity, the gravity threshold must require something additional to the seriousness inherent in the definitions of crimes. (18) Accordingly, the Chamber termed the gravity threshold the "additional gravity threshold." (19) This additional threshold, according to PTC I, has three components. First, it requires that the...