Gravity and the Legitimacy of the International Criminal Court

Abstract

References to gravity are threaded throughout the Rome Statute's provisions relating to jurisdiction and its exercise. These references reflect the drafters' philosophical vision for the Court, but fail to provide the institution with clear legal guidance. Part II begins by examining the relevant statutory provisions, exploring ambiguities in the text and suggesting how it should be interpreted. It then canvases the legislative history for indications of the drafters' intent and evaluates the approaches to gravity adopted thus far by the Court's judges and Prosecutor. The analysis in this Part demonstrates that gravity plays two essential and distinct roles for the ICC. First, it serves as a statutorily required "threshold" below which the Court should not exercise its jurisdiction. The Prosecutor must consider this threshold in selecting situations and cases and the judges are required to reject cases below the threshold when the issue is properly raised. The second role relates to the Prosecutor's discretion. In addition to considering the gravity threshold, the Statute's emphasis on gravity strongly suggests the Prosecutor should consider relative gravity in selecting among situations and cases above the threshold. The task of implementing the concept of gravity, both as a threshold and as a relative consideration in the exercise of discretion, requires an understanding of the theoretical bases for gravity's prominent place in the ICC regime. Part III therefore turns to the justifications for the gravity threshold and discretionary relative gravity considerations, rooting them in the Court's moral and sociological legitimacy. The study of institutional legitimacy is a vast and rapidly growing field of scholarly inquiry. This Article does not seek to contribute to that literature, but rather employs extant accounts of legitimacy to demonstrate the relationship between gravity and the ICC's actual and perceived legitimacy. The Article argues that gravity acts to legitimize the Court in two interrelated ways: the gravity threshold helps to ensure the moral legitimacy of the Court's exercise of jurisdiction, and the Prosecutor's discretionary use of relative gravity strongly affects perceptions of the Court's legitimacy. These observations about gravity's role in legitimizing the ICC lead to some important conclusions in Part IV about how the Court should operationalize gravity in its work. With regard to gravity threshold determinations, a relatively straightforward factor-based analysis is suggested. The Article sets forth the relevant factors and argues that only cases scoring at the bottom of the gravity spectrum on all factors should be excluded based on the gravity threshold.