Academic journal article The William and Mary Bill of Rights Journal

Understanding Crime Gravity: Exploring the Views of International Criminal Law Experts

Academic journal article The William and Mary Bill of Rights Journal

Understanding Crime Gravity: Exploring the Views of International Criminal Law Experts

Article excerpt

INTRODUCTION

It is widely accepted that not all crimes have the same gravity.1 Some crimes are simply more grave than others.2 Establishing a hierarchy of crimes has been difficult, however, even in domestic contexts.3 Nevertheless, there is now a growing body of literature addressing the relative gravity of the most common domestic offenses.4 But crime gravity is not just a feature of domestic criminal law. It also matters in international criminal law.5

The concept of gravity is enormously important at the International Criminal Court (ICC).6 It appears prominently in the Preamble to the Rome Statute7 and is used nine times in the body of the Statute.8 It is crucial at nearly every stage of the proceedings.9 For example, the Office of the Prosecutor (OTP) is required to consider "the gravity of the crime" when deciding whether to open a formal investigation.10 Once the Prosecutor has requested charges against an accused, the Court must determine whether the case is "of sufficient gravity" to be tried at the ICC.11 And, once a person has been found guilty, the gravity of their crimes is a key factor in determining their sentence.12

Crime gravity may also be very important to the long-term success of the ICC.13 in particular, the success of the court may hinge, in part, on whether there is a widely accepted understanding of the gravity of mass atrocities. If there is a widely accepted meaning of gravity and the ICC uses that concept of gravity in deciding where to investigate, whom to charge, and how to sentence people, then the court's gravity decisions will match people's expectations about those decisions.14 If the court's gravity decisions match people's expectations (i.e., if the court prosecutes those crimes that most people perceive as the most grave), those decisions are more likely to be viewed as the result of a fair process.15 And if they are viewed as fair, then the court is more likely to be perceived as legitimate.16 This, in turn, makes it more likely that people will comply with the requirements of international criminal law.17 Since fostering compliance with international criminal law is the primary purpose of the ICC,18 the question of whether there is a generally agreed upon meaning of gravity has important implications for the ability of the ICC to achieve its most important goal.

Yet despite its importance, the Rome Statute does not define what gravity means.19 This lack of a definition has resulted in multiple attempts to define gravity.20 The most comprehensive gravity definition in use within the court is the one that was created by the OTP.21 An earlier article by this author tested the components of the OTP's gravity definition to see if they matched people's subjective understanding of crime gravity.22 The results indicated that people's perceptions of crime gravity are not idiosyncratic.23 Rather, there was broad agreement about at least some of the gravity factors that were tested.24 There were some factors that were only weak indicators of crime gravity,25 but there were several factors that had broad support, including factors like the extent of the harm suffered by the victims, the type of crime committed, and the presence of particular cruelty.26 The results suggested that it should be possible for the court to create a gravity definition that would be widely viewed as fair and legitimate.

At the same time that the survey described in The Meaning of Gravity was administered to non-experts, it was also administered to a group of self-identified experts in international criminal law (ICL).27 This Article reports the results of the expert portion of the survey. It also compares the results of the experts to those of the nonexperts. It seeks to answer three main questions: First, are there meaningful differences between how experts and non-experts view the gravity of mass atrocities? Second, if so, what are those differences? And finally, assuming there are differences, what do those differences mean? …

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