21st SESSION OF THE ASSEMBLY OF STATES PARTIES
5 December 2022
Name of the Event: Shocking the Conscience of Humanity: From Gravity Theory to Practice (Book Launch for Judge Professor Margaret deGuzman Co-hosted by The Gambia and PILPG).
Report by: Paul Weber, Henry Smith, and Emma Bakkum
Speakers:
Professor Milena Sterio, Managing Director, PILPG and The Charles R. Emrick Jr. - Calfee Halter & Griswold Professor of Law, Cleveland State University College of Law
Margaret deGuzman, Judge, International Residual Mechanism for Criminal Tribunals and James E. Beasley Professor of Law, Temple University Beasley School of Law
Dr. Marieke de Hoon, Senior Counsel, PILPG and Assistant Professor, Faculty of Law, University of Amsterdam
Dr. Rod Rastan, Officer of the Prosecutor, International Criminal Court
Marie O’Leary, Counsel/Legal Adviser, Office of Public Counsel for the Defence, International Criminal Court
Summary of the Event:
PILPG and The Gambia co-hosted a side event on the first day of the 21st ASP to launch Judge Professor Margaret deGuzman’s recently published book “Shocking the Conscience of Humanity: From Gravity Theory to Practice”.
Judge Professor Margaret deGuzman introduced her newly published book by outlining and framing the main themes. DeGuzman first explained the book’s descriptive claims, which center around the concept of gravity and its use to justify decisions in international criminal law. The ambiguity of the concept of gravity has been constructive to international criminal law. For instance, it helped create the International Criminal Court (ICC) - the aim of providing justice for the ‘gravest’ crimes, without defining what exactly gravity meant, brought states together. However, the undertheorized agreement is becoming more destructive of the ICC’s authority. DeGuzman described the current need to build the international justice community, and how not giving meaning to the concept of gravity delegitimizes these efforts. Opponents of the community find it easy to undermine these efforts by questioning the legitimacy of a system based on a term that is left largely undefined.
The book’s prescriptive claims center around ideas on how we might give additional meaning to the concept of gravity in a way that may be constructive to the ICC’s regime. DeGuzman argues there should be further exploration of the actual goals of affected communities and the underlying values that underpin the gravity criteria. DeGuzman’s book shows that the concept of gravity does not necessarily have to play the central role that it currently does. It’s not integral that it should be about the “most serious crimes of concern to humanity”, however, historically, gravity has become a central concept to international criminal law.
DeGuzman then framed several themes and concepts as covered in her book:
The concept of legitimacy, which is also an undertheorized term. It regards both legal and moral authority, and should not be considered as a strict threshold: either there is legitimacy or not. Rather, legitimacy should be used as a scale.
The concept of gravity, which is defined as the idea that certain crimes are so horrible that they deserve to be investigated and prosecuted. These crimes of gravity are sometimes absolute or relative, also considered as a threshold or even in a comparative manner. These uses of the gravity concept are sometimes conflated in ways that undermine the legitimacy of international criminal law.
Framing: while there is a global community that justifies the existence of international criminal law, it is a thin community that only agrees on a small set of norms. Thus, part of the work of global organizations is to build that community by making decisions that reflect the ideas of the community and then articulating them through dialogues. Dialogue must be created to build common ground, and, for instance, the Assembly of States Parties is an essential platform for such dialogues.
Turning to adjudicative authority first, deGuzman used the Office of the Prosecutor’s (OTP) practice as an example. While the OTP has faced criticism, she noted that the OTP has moved in the right direction, particularly regarding case selection. According to deGuzman, the OTP has historically done well in relying on gravity to select cases for prosecution. Concretely, the OTP relied on specific norms, like the ban on child soldiers and Sexual and Gender-Based Violence, to underline the global interest in justice for violations. However, with regard to the selection of situations, the OTP for a long time took the view that it did not have any discretion. This led to some decision related to gravity that did not support the legitimacy of the institution ultimately. DeGuzman argues that the gravity threshold in Article 16 of the Rome Statute should therefore be minimal, but decisions to investigate situations should include explicit explanations of a compelling global interest and argumentation on why it outweighs national and regional interests. In this vein, the question of how to balance the global and national interest in order to promote legitimacy is a difficult one.
Continuing on adjudicative authority, Dr. Rod Rastan underlined the struggle for any prosecution related to giving effect to an explanation or criteria when decisions apply to a relatively small number of cases, with disparity between those cases. Criteria might be guiding, but there is an endpoint to explaining every aspect of a decision. It is a continuous process to identify what discretion is. Dr. Rastan expressed specific appreciation for the focus on dialogue in deGuzman’s book. DeGuzman’s book solicits engagement and input in trying to identify the rationale for decision making.
Dr. Marieke de Hoon then spoke from the perspective of those most affected. She particularly appreciated the concept of building a thin global justice community. While it is a very slow process to build international consensus, the international community will be going in a particular direction. For instance, the Al-Mahdi case is an example of the processes described in deGuzman’s book; a rationale for punishment regardless of the number of victims. Dr. de Hoon continued by noting that justice should be for the affected communities, referring to the struggle of the ICC to translate its decision making and explanations to the specific needs of affected communities. For instance, the need to make clear what the OTP is doing and why. She referred to the MH17 case in the Netherlands as an example. Two and a half weeks ago a Dutch district court published its judgment, which is now final as no appeal was submitted. The interactive process was appreciated by the next of kin, in particular because the Dutch public prosecution closely included them in the process and managed expectations. Some of the next of kin expressed that “justice is done, whatever the decision is.” This, however, relates to the larger challenge of identifying what affected communities want specifically. The ICC is often unable to provide the type of justice similar to MH17 to affected communities.
Focusing on defendant’s rights, Marie O’Leary noted the importance of deGuzman’s book by centralizing gravity. As the ICC is working with a public with a wide understanding of cases and gravity, the discussions in the book encourage a common understanding and open dialogue. The gravity discussion may guide and help in evaluating the purpose of what it is we’re doing. Panelists specifically referred to the issues surrounding early release: gravity is at times used as a foil for having conversations that need to be had.
The panelists and participants agreed on the importance of deGuzman’s book and its theoretical exploration of gravity and the call for dialogue and engagement in identifying rationales for decision making.