New Essay on SSRN

I have posted a new essay on SSRN, “Situational Gravity Under the Rome Statute,” which is forthcoming in Future Directions in International Criminal Justice, a book that Carsten Stahn and Larissa van den Herik are editing for TMC Asser/Cambridge University Press.  Here is the abstract:

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 offend the fundamental values of the international community – those that cause “social alarm,” in the words of the Pre-Trial Chamber in Lubanga; and (3) whether the situation involves crimes that were committed by States, instead of by rebel groups.

Many legal bloggers have speculated on the relationship between blogging and scholarship.  I would simply point out that this essay began life as a blog post.  When Carsten asked me if I wanted to contribute something to the volume, I immediately thought of the situational gravity topic — the post had led to an interesting and impassioned debate about the merits of the Prosecutor’s count-the-bodies approach to gravity.  In a very real sense, then, this essay would not have been written without Opinio Juris.

As always, comments and criticisms are most welcome!