The International Criminal Court’s Gravity Jurisprudence at Ten

13 Pages Posted: 26 Apr 2014 Last revised: 6 Aug 2014

See all articles by Margaret M. deGuzman

Margaret M. deGuzman

Temple University - James E. Beasley School of Law

Date Written: August 5, 2014

Abstract

This Essay, prepared for a symposium on “The International Criminal Court at Ten,” analyzes the ICC’s early jurisprudence on the gravity threshold for admissibility in Article 17 of the Rome Statute. 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, 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 (as opposed to “situations”), 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.

Keywords: proportionality, criminal law, sentencing, transitional justice, punishment

JEL Classification: K14, K33

Suggested Citation

deGuzman, Margaret M., The International Criminal Court’s Gravity Jurisprudence at Ten (August 5, 2014). Global Studies Law Review, Vol. 12, No. 475, 2013; Temple University Legal Studies Research Paper No. 2014-22. Available at SSRN: https://ssrn.com/abstract=2428779 or http://dx.doi.org/10.2139/ssrn.2428779

Margaret M. DeGuzman (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

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