The Concept of Gravity Before International Criminal Courts
Beth Van Schaack
One of the primary justifications for the international or extraterritorial prosecution of international crimes is that grave crimes should not go unpunished. The international criminal law tribunals are specifically charged in their founding documents with concentrating on the most serious crimes of international concern or upon high level defendants who are most responsible for the commission of international crimes. At several points within the Statute of the International Criminal Court (ICC), gravity operates as an express limitation on the Court’s jurisdiction and as a guide to the exercise of prosecutorial discretion. And yet, there is little in the Court’s Statute, Elements of Crimes, or other constitutive documents elucidating the quantitative or qualitative contours of this key concept. An Appeals Chamber of the ICC has recently made public its first ruling on gravity and set forth a blueprint for determining when crimes are sufficiently grave to justify ICC jurisdiction.
The Prosecutor v. Milan Martic, Appeals Chamber Judgment, ICTY
In October, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) rendered its judgment in the case against Milan Martic, allowing the Prosecution’s appeal and finding that persons hors de combat can be victims of crimes against humanity. Milan Martic was a key member of the Croatian Serb leadership who controlled a special police unit and held various positions in the self-declared Serb Autonomous Region of Krajina (SAO Krajina), including Minister of Interior and President. The Trial Chamber convicted Martic of war crimes and crimes against humanity for his participation in a joint criminal enterprise aimed at expelling non-Serbs from the Krajina region of Croatia, but acquitted Martic of crimes against humanity perpetrated against individuals who were hors de combat because they did not qualify as “civilians”. The Prosecution appealed this finding, urging that persons hors de combat can be victims of crimes against humanity.
A New U.S. Policy toward the ICC? A Review of Recent Reports
In a December 4 op-ed column in The New York Times, Roger Cohen wrote “I can think of no better place for President-Elect Barack Obama to start in signaling a changed American approach to the world, and particularly its European allies, than the International Criminal Court.” U.S. policy toward the Court has symbolized the Bush Administration’s preference for unilateralism, contempt for international law and aversion to accountability, and those who view the ICC primarily through the prism of symbolism are quick to urge President-elect Obama to embrace it. Yet many questions of law, politics and security must be answered before his Administration can determine a proper posture toward the Court. This review considers a few recently issued reports regarding the ICC in measuring the work that remains before a complete ICC strategy can be put forth.
Conference Summary: The Fragmentation and Diversification of International Criminal Law
The Grotius Centre for International Legal Studies, Universiteit Leiden, Campus Den Haag, Netherlands, October 23, 2008
In October, the Grotius Centre for International Legal Studies hosted its first conference on international criminal law (ICL) and fragmentation. The purpose of the conference was to address the problem analyzed in the International Law Commission’s 2006 report on the fragmentation of international law, in the specific context of ICL. The conference’s participants emphasized the tensions between the universality of ICL and the effects of legal pluralism, focusing primarily on two aspects of fragmentation: the diversification of norms and institutions in ICL, and the fragmenting effects of national legislation implementing the Statute of the International Criminal Court (ICC).