The tension between law and politics: can the ICC navigate a multipolar world?

Author:deGuzman, Margaret M.
Position:International Criminal Court - International Law in a Multipolar World

This panel was convened at 9:00 am, Saturday, April 6, by its moderator, Shahram Dana of the John Marshall Law School, who introduced the panelists: Margaret deGuzman of Beasley School of Law, Temple University; Frederic Megret of McGill University; Diane Orentlicher of American University Washington College of Law; and Darryl Robinson of Queens University, Ontario.

GRAVITY RHETORIC: THE GOOD, THE BAD, AND THE "POLITICAL"

By Margaret M. deGuzman *

The concept of gravity plays a central role in determining the ICC's place in the global legal and political orders. Indeed, the rhetoric of international criminal law more generally is replete with references to the gravity, or seriousness, of the subject matter. Virtually every commentary on international criminal law invokes the horrific nature of the crimes that are the subjects of this body of law. They are labeled "atrocities," "unimaginable acts," and "crimes that shock the conscience of humanity." The statutes of international courts, as well as statements of prosecutors, judges, and politicians, all reflect the centrality of gravity rhetoric to the international criminal law regime. Gravity rhetoric operates in several important ways in the regime. Most importantly, for purposes of this discussion, gravity rhetoric serves to justify the jurisdiction of international courts as well as the exercise of that jurisdiction in particular situations and cases.

Beginning with the International Military Tribunal at Nuremberg, gravity rhetoric has been used to justify the establishment of international criminal courts. In recent years, the UN Security Council has used gravity rhetoric to justify the creation of ad hoc criminal tribunals and the referral of situations to the ICC, even when the relevant states have not consented to the jurisdiction of those bodies. Gravity rhetoric thus seeks to limit the powers traditionally associated with state sovereignty, with important consequences for global order.

Gravity rhetoric also significantly affects the rights of individuals accused of "international" crimes. Once a crime is labeled a "serious crime of concern to the international community," certain protections traditionally afforded to defendants are deemed inapplicable, or at least less important. Examples include statutes of limitations, immunities, and the principle of legality. The gravity of the crimes justifies privileging the quest for accountability over the protection of individuals against the possibility of unjust conviction and punishment.

Despite the importance of the concept of gravity in international criminal law, little attention has been paid to its impact on the regime. In my recent work, I have attempted to shed light on gravity's role in the international criminal law regime, with particular attention to the regime's central institution, the ICC. (1) Among the conclusions I have reached are the following: (1) the concept of gravity is inherently ambiguous and malleable; (2) gravity's ambiguity has enabled the concept to serve a constructive role in the regime; and (3) the concept's ambiguity is also problematic for the regime in a number of important ways; in particular, it serves to obscure choices among competing values.

While participants in the international criminal law regime frequently invoke the gravity of the crimes at issue, they rarely seek to explain what makes such crimes particularly bad. Reference is often made to the large number of victims affected by the crimes. However, many people are uncomfortable relying on numbers to explain crime seriousness, since the implication is that a single murder or rape is not especially bad. Instead, the ICC Prosecutor and judges have invoked a number of factors that contribute to a determination of seriousness including the scale, nature, manner of commission, and impact of the crimes. The result of this factor-based approach is that virtually any crime can be labeled "grave." If the number of victims is relatively low, a determination of gravity can be based on the broader impact of the crimes or the brutality or callousness with which they were committed.

This lack of clarity about what makes crimes sufficiently grave to merit international adjudication served a constructive purpose in the creation of the ICC. When the ICC statute was adopted in 1998, states did not share a common vision of the ICC's role in the global order. Some states viewed the ICC as an instrument for human rights promotion and wanted a strong ICC with a broad mandate. Other states were concerned that the ICC would unduly infringe on state sovereignty and sought to limit the ICC's role to situations on the scale of the Holocaust and the Rwandan genocide. Gravity's ambiguity helped to bridge this divide. States could agree that the ICC's work should be limited to "the most serious crimes of concern to the international community," without having to agree on what that includes.

Gravity's ambiguity is increasingly problematic, however, as the ICC seeks to establish its place in the global legal order. Reliance on gravity to justify ICC jurisdiction as well as the exercise of that jurisdiction serves to mask competition among important values. First, with regard to jurisdiction, gravity obscures the tension between the desire for accountability on the one hand and the values of defendants' rights and state sovereignty on the other. Once a crime is labeled sufficiently grave to be considered an "international crime"--a war crime, crime against humanity, or genocide--the value of accountability is often privileged over the protection of defendants through doctrines such as statutes of limitations, immunities, and the principle of legality. Additionally, once the label is applied, the international community's interest in accountability often takes precedence over the state's claimed interests, which may include amnesty in exchange for peace or alternative approaches to justice such as truth commissions.

Gravity rhetoric thus discourages important debates about the circumstances under which accountability should be privileged over strict adherence to defendants' rights and respect for the choices of sovereign states. This is increasingly problematic because the subject matter jurisdiction of international courts has been gradually expanding since Nuremberg. For example, the ICC, unlike its predecessors, has jurisdiction over a single isolated war crime. As the subject matter of international criminal law expands to include additional types of harms and levels of culpability, the importance of considering the values competing with accountability increases.

Gravity's ambiguity also presents problems with regard to the appropriate exercise of jurisdiction at international courts, in particular the ICC. While the ICC has jurisdiction over a single isolated war crime, it is not permitted to exercise that jurisdiction if the case is deemed insufficiently "grave." Beyond this "gravity threshold" for admissibility, the ICC Prosecutor has discretion to give priority to the situations and cases she considers most serious. Because gravity has no clear content, however, decisions explained in terms of gravity are easily attacked as misguided or, more often, "political." When the ICC Prosecutor declined to open an investigation into the war crimes of British soldiers in Iraq on the grounds that the situation was insufficiently serious, the decision was widely attacked as catering to a powerful state. Likewise, when the ICC Prosecutor defends her office's focus on situations in Africa on the basis of gravity, critics charge that the real motivations for her decisions are political.

Due to gravity's ambiguity, therefore, the ICC's efforts to explain its work in terms of the "law" of gravity are often perceived as efforts to mask the influence of politics. Indeed, the ICC has been accused of acting as a tool of powerful states against the less powerful. In recent years, such charges have begun to have a significant impact on perceptions of the legitimacy of the ICC's work.

Gravity's inherent ambiguity thus renders it ill-suited to serve as a central legal constraint on the ICC's work. Although gravity will undoubtedly continue to play an important role in determining when and where the ICC operates, it may be advisable for the ICC prosecutor to acknowledge more fully the role that politics play in her selection decisions. Highlighting rather than obscuring the role of politics may encourage states to play a more constructive role in the work of the ICC.

Moreover, the ICC's...

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