01 Nov New Version of Situational Gravity Essay
I have posted a substantially rewritten version of my essay “Situational Gravity Under the Rome Statute” on SSRN. Here, again, 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 cause “social alarm” in the international community; and (3) whether the situation involves crimes that were committed by States, instead of by rebel groups.
I normally wouldn’t mention an essay twice, but readers might be interested in the reason I had to rewrite this one. The original version of the essay repeatedly cited the Pre-Trial Chamber’s arrest warrant decision in Lubanga, because I thought that the Chamber’s approach to determining the gravity of a particular case made even more sense in terms of situational gravity. Unfortunately, as I just found out, the Appeals Chamber reversed the Pre-Trial Chamber more than two years ago, categorically rejecting its approach to case gravity. A dumb mistake on my part? Not really — the Appeals Chamber didn’t publicly release its judgment until the end of September. Why the two-year delay? Your guess is as good as mine. Nothing in the judgment seems even remotely sensitive, and you would think that the Appeals Chamber would rather not have scholars rely — as they have in a number of essays — on an analysis of an important issue with which they completely disagree.
In any case, the Pre-Trial Chamber’s decision was not essential to my essay, although I continue to believe that two of the gravity factors the decision emphasized — systematicity and social alarm — are an important counterbalance to the OTP’s myopic focus on body counts. Comments on the revised draft would be most welcome.