The gravity threshold under the Statute of the International Criminal Court

Criminal Law Forum

Volumn 19, Issue 1, 2008, Pages 35-57

  El Zeidy, Mohamed M ^a  

^a Egyptian Ministry of Justice   (Egypt)

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EID: 41149100763     PISSN: 10468374     EISSN: 15729850     Source Type: Journal    
DOI: 10.1007/s10609-007-9049-2     Document Type: Conference Paper

References (142)

1. There is, however, a noticeable detailed piece of work covering this question published in this journal in 2006. See Ray Murphy, 'Gravity Issues and the International Criminal Court', 17 CRIM. L. FORUM. 281 (2006).
2. See infra notes 14-19.
3. John T. Holmes, The Principle of Complementarity, in THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROME STATUTE, ISSUES. NEGOTIATIONS. RESULTS 47 (Roy S. Lee, ed., 1999).
4. See, e.g., Report of the Inter-Sessional Meeting From 19 to 30 January 1998 in Zutphen, The Netherlands (A/AC.249/1998/L.13, 1998), p. 43 [hereinafter Zutphen Report];
5. Report of the Preparatory Committee on the Establishment of an International Criminal Court, Draft Statute & Draft Final Act (A/Conf.183/2/Add.1, 1998), p. 41 [Draft Final Act].
6. Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 17 July 1998, UN Doc., A/CONF.183/9, Art. 17(1) (d) [hereinafter ICC/ Rome Statute].
7. Rome Statute, preamble, para. 4 (reading 'affirming that the most serious crimes of concern to the international community as a whole must not go unpunished ...').
8. Ibid., Art. 1 ('[The ICC] shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern ....').
9. Ibid., Art. 5 ('The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole....').
10. Ibid., preamble para. 3.
11. Summary Records of the Meetings of the Forty - First Session (2 May-21 July 1989), 1989 YILC, Vol. I, pp. 20-21.
12. Ibid., p. 24.
13. Ibid., p. 31.
14. Summary Record of the 2155th Meeting, 1990 YILC Vol. I, p. 37.
15. Ibid.
16. Summary Record of the 2330th Meeting, 1994 YILC Vol. I, p. 9.
17. Ibid.
18. Ibid.
19. Summary Record of the 2333rd. Meeting, 1994 YILC Vol. I, p. 33.
20. Summary Record of the 2356th Meeting 1994 YILC Vol. I, p. 193.
21. Summary Record of the 2332nd. Meeting 1994 YILC Vol. I, p. 27;
22. Summary Record of the 2358th Meeting 1994 YILC Vol. I, p. 210.
23. Holmes, supra note 2, p. 47.
24. Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN GAOR, 51st Sess., Vol. 1, Supp. No. 22, UN Doc. A/51/22 (1996), para. 169 [hereinafter 1996 Preparatory Committee Report, Vol. I].
25. Holmes, supra note 2, p. 47;
26. Zutphen Report, supra note 3, Art. 11[35] [2] (d), p. 43;
27. Draft Final Act, supra note 3, Art. 15(1) (d), p. 49.
28. Nonetheless, there was a footnote accompanying these drafts stating that 'Some delegations believed that this subparagraph should be included elsewhere in the Statute or deleted" See ibid., p. 43 n. 59, p. 49 n.44 of the above drafts respectively.
29. Summary Record of the 10th Meeting, 22 June 1998, UN Doc. A/CONF.183/C.1/SR. 10, para. 18.
30. Summary Record of the 5th Plenary Meeting, 17 June 1998, UN Doc. A/CONF. 183//SR.5, para. 45.
31. Summary Record of the 11th Meeting, 22 June 1998, UN Doc. A/CONF.183/ C.1/SR.11, para. 29.
32. See Bureau Discussion Paper U.N. Doc. A/CONF. 183/C.1/L.53, art. 15 (1) (d), 6 July 1998;
33. Bureau Discussion Paper U.N. Doc. A/CONF. 183/C.1/L.59/Corr.1, art. 15(1) (d), 11 July 1998.
34. Report of the Committee of the Whole, UN Doc. A/CONF.183/8, art.17 [15] (1) (d), 17 July 1998.
35. Rome Statute, Art. 17(1) (d).
36. In the same vein, Prosecutor v. Duško Tadić, Case No. IT-94-1-A and IT-94-1-Abis, Judgment in Sentencing Appeal, 26 January 2000 (Separate Opinion of Judge Cassese), para. 13 (noting that the drafters of the ICC Statute 'intended to spell out the notion that in principle the ICC should concentrate on the most egregious instances of war crimes, while lesser categories of such crimes should be prosecuted and tried by national courts').
37. Rome Statute, Art. 17 (1). The chapeau of Article 17 stipulates that the 'Court shall determine that a case is inadmissible where...' Using the phrase 'shall determine' makes it evident that such examination is obligatory.
38. Report on the Activities Performed during the First Three Years (June 2003-June 2006), pp. 5-6 [hereinafter (2003-2006) Activities Report].
39. Ibid., p. 8.
40. Ibid.
41. Ibid., p. 11.
42. Fourth Report of the Prosecutor of the International Criminal Court, Mr. Luis Moreno Ocampo, To the UN Security Council Pursuant to UNSCR 1593 (2005), 14 December 2006, p. 3.
43. Ibid.
44. Report on Prosecutorial Strategy, 14 September 2006, pp. 5-6 [hereinafter 2006 Strategy Report].
45. Update on Communications received by the Prosecutor, Iraq response, 9 February 2006, available at. http://www.icc-cpi.int/organs/otp/otp_com.html
46. See for example, Protocol Additional to the 1949 Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, (1979) 1125 UNTS 3, Art. 77(2);
47. Convention on the Rights of the Child, GA Res. 44/25, Annex, Art. 38;
48. Prosecutor v. Sam Hinga Norman, (Case No. SCSL2004-14-AR72 (E)), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), (Dissenting Opinion of Justice Robertson), 31 May 2004, paras 6, 32 (confirming the opinion of Professor William Schabas that there is no doubt that the 'enlistment' crime in Article 8 of the Rome Statute was 'new law');
49. WILLIAM A. SCHABAS, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT 63 (2nd. ed., 2004).
50. (2003-2006) Activities Report, supra note 30, p. 8.
51. Ibid., chapeau to Art. 7.
52. Ibid., chapeau to Art. 8.
53. LEILA NADIA SADAT, THE INTERNATIONAL CRIMINAL COURT AND THE TRANSFORMATION OF INTERNATIONAL LAW: JUSTICE FOR THE NEW MILLENNIUM 124-125 (2002).
54. Paper on Some Policy Issues before the Office of the Prosecutor, September 2003, [hereinafter 2003 OTP Policy Paper] p. 3.
55. Ibid., p. 7.
56. First Report of the Prosecutor of the International Criminal Court, Mr. Luis Moreno Ocampo, To the Security Council Pursuant to UNSCR 1593(2005), 29 June 2005, p. 3. Notably, the origins of the term 'those who bear the greatest responsibility' appear to be Security Council resolution 1315 establishing the Special Court for Sierra Leone.
57. See UN Doc. S/RES/1315 (2000). The intention behind using the term, was to direct the focus of the Special Court 'to those who played, a leadership role'.
58. See Prosecutor v. Moinina Fofana et al., (Case No. SCSL-04-14-PT), Decision on the Preliminary Defence Motion on the Lack of Personal Jurisdiction filed on Behalf of Accused Fofana, 3 March 2004, para. 40 (stating that in 'expressing its preference 'for persons who bear the greatest responsibility' instead of 'persons most responsible', the Security Council directed that the fact that an individual held a leadership role should be the primary consideration; the severity of a crime or the massive scale of a particular crime should not be the primary consideration'. Arguably, the idea of giving preference to the leadership role in the determination of gravity of a case before the ICC seems inapplicable, since the determination of a gravity of a case should give due consideration to all factors involved, where they are all equally necessary for making such a determination.
59. Statement of the Prosecutor of the International Criminal Court, Mr. Luis Moreno Ocampo to the UN Security Council Pursuant to UNSCR 1593(2005), 14 June 2006, p. 2.
60. Third Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1593(2005), 14 June 2006, p. 2.
61. Rome Statute., Art. 53 (1) (b).
62. Ibid., Art. 53 (2) (b).
63. Ibid., Art 17(1)(d).
64. (2003-2006) Activities Report, supra note 30, p. 6.
65. 2006 Strategy Report, supra note 36, p. 5.
66. See inter alia, Prosecutor v. Ivica Rajić, a.k.a. Viktor Andrić, Case No. (IT-95-12-S), Sentencing Judgment, 8 May 2006;
67. Prosecutor v. Dragan Nikolić, Case No. (IT-94-2-A), Sentencing Judgment, 18 December 2003, paras 186-199 (providing factual circumstances on the criterion of the 'manner of commission of the crimes' and known as 'depravity of the crimes').
68. Prosecutor v. Vladimir Kovačević, Case No. (IT-01-42/2-I), Decision on Referral of Case Pursuant to Rule 11 Bis With Confidential and Partly Ex Parte Annexes, 17 November 2006, paras 19-21, 92;
69. Prosecutor v. Gojko Jankovic, Case No. (IT-96-23/2-PT), Decision on Referral of Case Under Rule 11 Bis, 22 July 2005, paras 18-20, 105;
70. Prosecutor v. Radovan Stankovic, Case No. (IT-96-23/2-PT), Decision on Referral of Case Under Rule 11 bis Partly Confidential and Ex Parte, 17 May 2005, paras 18-20;
71. Prosecutor v. Zeljko Mejakic, Momcilo Gruban, Dusan Fustar, Dusko Knezevic, Case No. (IT-02-65-PT), Decision on Prosecutor's Motion for Referral of a Case pursuant to Rule 11 Bis, 20 July 2005, paras 20-27.
72. Probably it is impossible for the OTP to provide an exhaustive list of the aggravating factors since this will be dependent on the circumstances of each situation/case. Yet, the OTP could have offered, at least some examples. In the Celibici case, the Trial Chamber stated that '[t]he conduct of the accused in the exercise of his superior authority could be seen as an aggravating circumstances or in mitigation of his guilt. There is no doubt that abuse of positions of authority or trust will be regarded as aggravating'. See Prosecutor v. Muck et al. 'Celebici' Case No. (IT-96-21-T), Judgment, 16 November 1998, para. 1220. Similarly, in assessing gravity, the abuse of positions of authority depending on the knowledge of the crimes committed and the failure to prevent its commission may be seen as aggravating factors.
73. See for example, Prosecutor v. Dragan Nikolić, Case No. (IT-94-2-A), Judgment on Sentencing Appeal, 4 February 2005, para. 18 (noting that the gravity of a crime must be determined by reference to, inter alia, the 'form' and 'degree' of 'participation' of the accused in the commission of the crime);
74. also Prosecutor v. Radislav Krstic, Case No. (IT-98-33-A), Judgment, 19 April 2004, para. 24.1 ;
75. Prosecutor v. Goran Jelisic Case No. (IT-95-10-A), Judgment, 5 July 2001, para. 101;
76. Prosecutor v. Mucic et al. 'Celebici' Case No. (IT-96-21-Tbis-R117), Sentencing Judgment, 9 October 2001, para. 19 (showing the effect of degree of participation on the notion of gravity).
77. Prosecutor v. Thomas Lubanga Dyilo, Decision on the Prosecutor's Application for a Warrant of Arrest, Art. 58, Case No. ICC-01/04-01/06,10 February 2006, para. 46.
78. Rome Statute, Art. 7.
79. Ibid., Art. 8.
80. Prosecutor v. Duško Tadić, Case No. (IT-94-1-T), Sentencing Judgment, 14 July 1997, para. 61;
81. Prosecutor v. Duško Tadić, Case No. (IT-94-1-TWs-R117), Sentencing Judgment, 11 November 1999, para. 25;
82. Prosecutor v. Mucic et al. 'Celebici' Case No. (IT-96-21-T), Judgment, 16 November 1998, para. 1226.
83. With the exception of the criterion of 'nature of the crimes', that seems to have been overlooked by the Chamber.
84. Prosecutor v. Thomas Lubanga Dyilo, Decision on the Prosecutor's Application for a Warrant of Arrest, Art. 58, Case No. ICC-01/04-01/06, 10 February 2006, paras 50-53; and also see para. 63 where the Chamber concluded that in order to determine the gravity of any case before the Court, three questions have to be answered in the affirmative. These questions are the sum of the factors the five factors introduced earlier in the decision. These questions are:' (i) Is the conduct which is the object of a case systematic or large-scale (due consideration should also be given to the social alarm caused to the international community by the relevant type of conduct)?; (ii) Considering the position of the relevant person in the State entity, organisation or armed group to which he belongs, can it be considered that such person falls within the category of most senior leaders of the situation under investigation?; and (iii) Does the relevant person fall within the category of most senior leaders suspected of being most responsible, considering (1) the role played by the relevant person through acts or omissions when the State entities, organisations or armed groups to which he belongs commit systematic or large-scale crimes within the jurisdiction of the Court, and (2) the role played by such State entities, organisations or armed groups in the overall commission of the crimes within the jurisdiction of the Court in the relevant situation?'
85. 2006 Strategy Report, supra note 36, p. 4.
86. (2003-2006) Activities Report, supra note 30, p. 8.
87. This does not intend to say that the OTP was mistaken in stating that the assessment will be dependent on the evidence that arises in the course of investigation, rather to show the deviation.
88. On the difference, see Silvia A. Fernández de Gurmendi, The Role of the International Prosecutor, in ROY S. LEE (ED.), supra note 4, p. 180.
89. On the same distinction but in the context of the Security Council referrals, see Lionel Yee, The International Criminal Court and the Security Council: Articles 13(b) and 16, in ROY s. LEE (ed.), supra note 4, pp. 147-148.
90. Decision on the Applications for Participation in the Proceedings of VPRS1, VPRS2, VPRS3, VPRS4, VPRS5, and VPRS6, Case No, ICC-01/04, 17 January 2006, para. 65.
91. Although Pre-Trial Chamber II did not go into a detail examination of the question of admissibility and thus confined its ruling to a prima facie determination that the case 'appears to be admissible', interestingly, Pre-Trial Chamber II implicitly considered the role and superior position of Joseph Kony and the four other LRA leaders that led the Chamber to be satisfied to issue the warrant for arrest. The Chamber stated: 'Considering the allegations that LRA forces are divided into four brigades ..., and that, since July 2002, the LRA's hierarchy of posts under Jospeh Kony's overall leadership has included Vincent Otti, the Vice-Chairman and Second-in-Command; the Army Commander; three senior posts of Deputy Army Commander, Brigade General and Division Commander; and four Commanders of equal rank, each of whom leads one of the four LRA brigades; Considering the specific allegations that Joseph Kony, Vincent Otti and other Senior LRA commanders are the key members of 'Control Alter', the section representing the core LRA leadership for devising and implementing LRA strategy, including standing orders to attack and brutalise civilian population...' See Warrant of Arrest for Joseph Kony Issued on 8 July 2005 as Amended on 27 September 2005, No.: ICC-02/04-01/05, 27 September 2005, paras 7-12.
92. Prosecutor v. Gojko Jankovic, Case No. (IT-96-23/2-PT), Decision on Referral of Case under Rule 11 Bis, 22 July 2005, para. 19.
93. Prosecutor v. Gojko Jankovic, Case No. (IT-96-23/2- AR11bis.2), Appeals Decision on Rule 11 bis, 15 November 2005, para. 19.
94. Prosecutor v. Vladimir Kovačević, Case No. (IT-01-42/2-I), Decision on Referral of Case Pursuant to Rule 11 Bis With Confidential and Partly Ex Parte Annexes, 17 November 2006, para. 20;
95. see also Prosecutor v. Zeljko Mejakic, Momcilo Gruban, Dusan Fustar, Dusko Knezevic, Case No. (IT-02-65-PT), Decision on Prosecutor's Motion for Referral of a Case pursuant to Rule 11 Bis, 20 July 2005, para. 26.
96. Concurring, Murphy, supra note 1, p. 291 (noting that although the three constituent elements adopted by the Pre-Trial Chamber 'are very useful', the 'threshold' set is very 'high').
97. 2003 OTP Policy Paper, supra note 47, p. 3.
98. Prosecutor v. Thomas Lubanga Dyilo, Decision on the Prosecutor's Application for a Warrant of Arrest, Art. 58, Case No. ICC-01/04-01/06, 10 February 2006, para. 61
99. quoting 2003 OTP Policy Paper, p. 7.
100. Ibid., para. 62.
101. 2003 OTP Policy Paper, supra note 47, pp. 3, 7.
102. See for example, Rome Statute, Art. 42 (1) stating that: 'The Office of the Prosecutor shall act independently as a separate organ of the Court'; also Rome Statute, Art. 57, which spells out the main powers and functions provided to the Pre-Trial Chamber. As to the other provisions of the Statute, I am not aware of any provision that makes decisions of the Pre-Trial Chamber legally obligatory on the OTP.
103. In any event, even assuming that the Pre-Trial Chamber intended to mandate the OTP to apply certain factors in its determination of gravity, in practice nothing would have forced the OTP to comply if it decided not to.
104. Murphy, supra note 1, p. 291.
105. See for example, Prosecution's Reply under Rule 89 (1) to the Applications for Participation of Applicants a/0010/06, a/0064/06 to a/0070/06, a/0081/06 and a/0111/06 to a/0127/06 in the Uganda Situation, No.: ICC-02/04, 28 February 2007, paras 7, 8 (where the OTP explicitly disagreed with the earlier finding of Pre-Trial Chamber I in relation to the possibility of participation of victims during a situation stage. The OTP stated 'While agreeing with the definitions of 'situation' and 'case' articulated by Pre-Trial Chamber I, the prosecution respectfully maintains its view that the ruling of Pre-Trial Chamber I permitting general victim participation in a situation has no basis in the Statute...').
106. Rome Statute., Art. 53.
107. Ibid., Art. 53(2) (c), (3) (b).
108. Ibid.
109. Ibid., Art. 53 (3) (b).
110. Decision Requesting Information on the Status of the Preliminary Examination of the Situation in the Central African Republic, No.: ICC-01/05, 30 November 2006, p. 3.
111. Regulations of the Court, Adopted by the judges of the Court on 26 May 2004, Fifth Plenary Session The Hague, 17-28 May 2004, Official Documents of the International Criminal Court ICC-BD/01-01-04, Regulation 46 (2)[hereinafter ICC Regulation].
112. Rome Statute, Art. 18 (1). Article 18 (1) stipulates: 'When a situation has been referred to the Court pursuant to article 13(a) and the Prosecutor has determined that there would be a reasonable basis to commence an investigation, ...the Prosecutor shall notify all States Parties...'
113. Ibid., Art., 53(1).
114. ICC Rule 104.
115. Ibid., Rule 105 (1).
116. Rule 105 (1) reads: 'When the Prosecutor decides not to initiate an investigation under article 53, para. 1, he or she shall promptly inform in writing the State or States that referred a situation under article 14...' see also subrule 4 which states: 'In case the Prosecutor decides not to investigate solely on the basis of article 53, para. 1 (c), he or she shall inform in writing the Pre-Trial Chamber promptly after making that decision'.
117. Although the Chamber acted upon a request from the State, still because the Prosecutor has not reached a decision per article 53(1), the Chamber's powers under this provision should not be activated.
118. These provisions require that the OTP has already reached a conclusion not to proceed.
119. Rome Statute, Art. 21(1). For the application, see, for example, Prosecutor v. Thomas Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2) (a) of the Statute of 3 October 2006, Case No.: ICC-01/04-01/06 (OA4), 14/12/2006, para. 34.
120. Ibid., Art. 52 (see the first sentence).
121. Ibid.
122. Prosecution's Report Pursuant to Pre-Trial Chamber III's 30 November 2006 Decision Requesting Information on the Status of the Preliminary Examination of the Situation in the Central African Republic, No.: ICC-01/05, 15/12/2006, paras 1, 10; ICC Rule 105, 106.
123. Decision Requesting Information on the Status of the Preliminary Examination of the Situation in the Central African Republic, No.: ICC-01/05, 30 November 2006, p. 4.
124. United States v. Hastings, 847 F. 2d 920,923 (1st Cir., 1998);
125. United States v. Thomas Gambino, 59F. 3d 353, 360 (2nd Cir., 1995);
126. Leckstein v. Menon, Queen's Bench Division [2003] [WHC 90(QB], 30 January 2003, para. 44;
127. R. v. Lawrence, House of Lords, [1.982]AC510[1981] 1 All ER 974[1981] 2WLR524, 19 March 1981.
128. For a detailed survey concerning the distinction, see Michael Bohlander, 'International Criminal Tribunals and their Power to Punish Contempt and False Testimony', 1.2 CRIM. L. FORUM 91 (2001);
129. WILLIAM. A. SCHABAS, THE UN INTERNATIONAL CRIMINAL TRIBUNALS: THE FORMER. YUGOSLAVIA, RWANDA AND SIERRA LEONE 112-11.6 (2006).
130. Reparation for Injuries suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, I.C.J. Reports 1.949, pp. 180, 182-183;
131. International Status of South-West Africa, Advisory Opinion of 11 July 1950, I.C.J Reports 1950, p. 136;
132. Effect of Awards of Compensation made by the United Nations Administrative Tribunal, Advisory Opinion of 13 July 1954, I.C.J Reports 1954, pp. 56-58;
133. Certain Expenses of the United Nations, Advisory Opinion of 20 July 1962, I.C.J. Reports 1.962, pp. 167-168;
134. Legal Consequences for States of the Continued Presence of South Africa in Namibia, Advisory Opinion of 21 June 1971, I.C.J Reports 1971, pp. 47-49, 52;
135. Legality of the Use By a State of Nuclear Weapons in Armed Conflict, Advisory Opinion of 8 July 1996, I.C.J., para. 25.
136. Schabas, supra note 101, pp. 112-113.
137. Prosecutor v. Duśko Tadić, Case No. 94-1-A-R77, Judgment on Allegations of Contempt Agianst Prior Counsel, Milan Vujin, 31 January 2000, paras 12-18, 25-26;
138. Prosecutor v. Tihomir Blaskic, Case No. (IT-95-14-AR108bis), Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, para. 59;
139. Prosecutor v. Zlatko Aleksovski, Case No. (IT-95-14/1-AR77), Judgment on Appeal by Anto Nobilo Against Finding of Contempt, 30 May 2001, para. 30.
140. Bohlander, supra note 101, p. 96
141. (citing BLACKS LAW DICTIONARY 1170(6 th ed., 1990)).
142. Ibid.