Tuesday, June 19, 2012

How Serious Are International Crimes?

With the ICC celebrating its ten-year anniversary and welcoming a new prosecutor, this is an appropriate time for some soul searching. In my draft article, How Serious Are International Crimes? The Gravity Problem In International Criminal Law, I seek to contribute to that process. The article demonstrates that the concept of gravity is the central justification for the exercise of international criminal jurisdiction. International crimes are believed to be exceptionally serious and thus worthy of international adjudication. In fact, however, international criminal law is expanding to include increasingly less serious types of harms and levels of culpability. Ironically, it is precisely the idea of gravity – an elastic and elusive idea – that has facilitated this expansion. Ambiguity in the concept of gravity has enabled judges and prosecutors to push the boundaries of their mandates outward. Moreover, as the article shows, this trend is likely to continue in light of the wide-ranging goals of international courts and the institutional and individual incentives at work.
It is easy to celebrate the expansion of international criminal law – a broader scope for the regime presumably makes it a more powerful tool for curtailing impunity. Yet expansion also raises concerns related to state sovereignty and defendants’ rights. When the ICC exercises its jurisdiction over the objection of the state where crimes occurred, the justification for this infringement on sovereignty is that the crimes at issue are so serious that the international community cannot tolerate non-prosecution. The interests of the international community in prosecution are thus privileged over the state’s interests, even when the latter include a desire to pursue other transitional justice mechanisms such as truth commissions. Similarly, international prosecutions privilege criminal adjudication over defendants’ interests by, for example, refusing to apply statutes of limitations. While the international community may be justified in privileging accountability over competing interests in cases of exceptional gravity, in more marginal cases the balance can weigh against adjudication. As a prescriptive suggestion, therefore, the article urges that prosecutors and judges re-conceptualize gravity to require an interrogation and balancing of competing interests.

The issues explored in this article are critically important to the continued vitality and even survival of the international criminal law regime, particularly the International Criminal Court (ICC). The ICC rests on a fragile compromise between, on the one hand, states and NGOs intent on promoting human rights through accountability and, on the other, states concerned about the dilution of sovereignty that the regime represents. If the ICC’s prosecutor and judges continue on the current expansionist trajectory without acknowledging the countervailing interests, the regime is unlikely to garner the full support of powerful states such as the U.S. and may even lose some of its current adherents. I recently witnessed the fragility of ICC-national relations first hand when I traveled to Nairobi to participate in a roundtable aimed at promoting international criminal law teaching and scholarship at East African universities. In discussing the ICC’s prosecutions in Kenya, many of the participants, all of whom are East African law professors, expressed the view that the ICC has not shown sufficient respect for Kenya’s sovereignty in deciding to pursue the Kenya situation without affording the state adequate time to organize its own trials. This is particularly concerning since the Kenya situation involves a discrete episode of violence that at least one ICC judge, Judge Kaul who dissented from the decision that the situation is admissible, believes does not meet the requirements of ICC jurisdiction. My article aims to bolster the regime by exposing the problems presented when the concept of gravity is used to mask conflicting interests and suggesting how prosecutors and judges can begin to develop a solution.
The article is part of my broader research agenda (and Phd dissertation) on the role of gravity international criminal law. I warmly welcome comments and reactions.

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