Situational Gravity Under the Rome Statute
FUTURE DIRECTIONS IN INTERNATIONAL CRIMINAL JUSTICE, Carsten Stahn and Larissa van den Herik, eds., TMC Asser/CUP, 2009
35 Pages Posted: 23 Sep 2008 Last revised: 30 Oct 2008
The ICC is often derided as the "African Criminal Court." That criticism cannot easily be dismissed: all of the Office of the Prosecutor's (OTP) current investigations focus on African states -- Uganda, the Central African Republic, the Democratic Republic of Congo, and the Sudan -- and it is analyzing the situations in three other African states, Cote D'Ivoire, Kenya, and Chad, to determine whether formal investigation is warranted. At the same time, the OTP has declined to investigate the situations in a number of non-African states, such as Venezuela and Iraq -- the latter despite its conclusion that there was a "reasonable basis to believe" that UK nationals had willfully killed a number of civilians and subjected a number of others to inhumane treatment.
The OTP has not denied -- nor could it -- that it has focused exclusively on situations in Africa. Instead, it has argued that its investigative decisions have been driven solely by an objective assessment of the gravity of the various situations, as required by Article 53 of the Rome Statute. In its view, the African situations are simply graver than the non-African situations, because they involve far greater numbers of victims.
This essay critiques the OTP's quantitative conception of situational gravity. More specifically, it argues that the OTP should de-emphasize the number of victims in a situation in favor of three qualitative factors when it determines the gravity of a situation: (1) whether the situation involves crimes that were committed systematically, as the result of a plan or policy; (2) whether the situation involves crimes that cause "social alarm" in the international community; and (3) whether the situation involves crimes that were committed by States, instead of by rebel groups.
Keywords: ICC, International Criminal Court, Rome Statute, international criminal law, international criminal justice, transitional justice, gravity, investigations, Office of the Prosecutor
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