Gravity

Articles
How Serious are International Crimes?

The Gravity Problem in International
Criminal Law
MARGARET M. DEGUZMAN*
Modern internationalcriminal law was born out of the

Holocaust-the systematic extermination of millions
of people. It was the gravity of those crimes that pro-
vided the theoreticaland politicaljustificationsfor the
first internationalcriminal trials at Nuremberg. Yet
today, the InternationalCriminal Court's Office of the
Prosecutor is considering situations involving as few
as six killings and an internationaltribunal has been
established to address the assassination of a single
political leader. This Article explains how the ambi-
guity of international criminal law's foundational
concept of gravity has facilitated this expansion and
exposes some problematic consequences of the expan-
sionist trend for state sovereignty and individual
rights. Finally, the Article suggests a solution that
moves beyond ambiguous gravity to interrogate the
interests at stake in decisions about international
criminal adjudication.
* Associate Professor, Temple University Beasley School of Law; Ph.D. Candidate,

National University of Ireland Galway; J.D., Yale Law School; M.A.L.D., Fletcher School
of Law and Diplomacy; B.S.F.S., Georgetown University School of Foreign Service. For
helpful comments on earlier drafts I am grateful to Jane Baron, Elena Baylis, Shahram Dana,
Jean Galbraith, Craig Green, Richard Greenstein, Charles Jalloh, Laura Little, Gregory
Mandel, Milan Markovic, Jaya Ramji-Nogales, William Schabas, James Shellenberger,
David Sonenshein, Peter Spiro, Beth Van Schaack, Jenia Turner, and David Zaring. I am
also indebted to Jeffrey Azarva, Douglas Maloney, Anthony Rock, and Michael Witsch for
excellent research assistance.
2012] HOW SERIOUS ARE INTERNATIONAL CRIMES?
INTRODUCTION ............................................................................... 19
I. A VAGUE CONCEPT PROPELS THE DEVELOPMENT OF
INTERNATIONAL CRIMINAL LAW .......................................... 23
A. The Birth of International Criminal Law at
N uremberg ................................................................. 25
B. Phase II: The Ad Hoc International Criminal
T ribunals ...................................................................... 30
C . Phase III: The ICC ...................................................... 31
D. The post-Rome Conference International Tribunals ....... 35
II. THE EXPANSIONIST TREND IN INTERNATIONAL CRIMINAL
36
L AW ....................................................................
A. Evidence of Expansion ............................................... 38
i. Broadening Harm s .................................................. 38
ii. Decreasing Culpability ........................................... 44
B. Predicting Continued Expansion ................................. 48
i. The Broad Goals of International Criminal Courts .... 48
ii. Identities and Incentives of International Judges
and Prosecutors ...................................................... 50
III. THE CONSEQUENCES OF EXPANSION .................................... 53
A. Expansion's Consequences for Sovereignty ................ 54
B. Increased Risk of Substantive Unfairness to
D efendants ................................................................. 61
C ON CLU SION .................................................................................. 65
INTRODUCTION
Until Nuremberg, criminal justice was considered the prov-

ince of states. The Nazi atrocities gave rise to the idea that some
crimes are so grave as to concern the international community as a
whole and therefore to warrant international adjudication.1 Although
1. Some commentators argue that the Nuremberg tribunal was not truly international
since it was established by agreement among a limited number of nations. See, e.g., Makau
Mutua, From Nuremberg to the Rvanda Tribunal: Justice or Retribution? 6 BUFF. HUM.
RTS. L. REV. 77, 79-80 (2000) (quoting Kenneth Anderson, Nuremberg Sensibility: Telbrd
Taylor's Memoir of the Nuremberg Trials, 7 HARV. HUM. RTs. J. 281, 289 (1994))
(describing Nuremberg tribunal as "'fundamentally an expression of a peculiarly American
legal sensibility"' and as an "orchestrated and highly manipulated forum"); Jonathan
COLUMBIA JOURNAL OF TRANSNA TIONAL LAW [51:18
controversial at the time, this idea has come to be widely accepted. 2

The gravity of international crimes is thus the primary conceptual
foundation of international law's authority to administer criminal jus-
3
tice.
Important consequences flow from the determination that a
"grave" international crime has occurred-consequences that can
both limit the authority of states and constrain the rights of individu-
als. Most importantly, such a crime can be prosecuted in an interna-
tional forum even over the objections of concerned states. Interna-
tional law may also require certain states to prosecute the crime and
arguably authorizes any state to do so. 4 An official prosecuted for
such a crime, even a head of state, has no immunity before an inter-
Turley, Transformative Justice and the Ethos of Nuremberg, 33 Loy. L.A. L. Riv. 655, 658
(2000) ("Nuremberg can easily be viewed as an American proceeding due to its heavy
reliance on American prosecutors and trial process rules."). However, the tribunal was
international in the sense that it asserted the authority to interpret and apply international
law, including the newly minted crimes against peace and crimes against humanity.
2. The Rome Statute, which has been ratified by 121 state parties and signed by
another sixteen, exemplifies this widespread acceptance of international tribunal
adjudication of serious crimes. See Rome Statute of the International Criminal Court, pmbl,
U.N. Doc. A/CONF. 183/9 (July 17, 1998) [hereinafter Rome Statute] ("Determined ... to
establish an independent permanent International Criminal Court ... with jurisdiction over
the most serious crimes of concern to the international community as a whole."); see also
About the Court: ICC at a Glance, INTERNATIONAL CRIMINAL COURT, http://www.icc-
cpi.int/Menus/ICC/About+the+Court/ICC+at+a+glance/ (listing state parties); Rome Statute
of the InternationalCriminal Court, UNITED NATIONS TREATY COLLECTION, http://treaties.un
.org/Pages/ViewDetails.aspx?src TREATY&mtdsg-no XVIII-10&chapter--18&lang en
(providing current status of signatories).
3. See, e.g., Pablo Castillo Diaz, The ICC in Northern Uganda: Peace First,Justice
Later, 2 EYES ON THE ICC 17 (2005) ("It is widely acknowledged that the moral
commitment to protect the most fundamental human rights at a global scale trumps state
sovereignty and the legal pillars that sustained classic international law.").
4. See Committee on International Human Rights Law and Practice, International
Law Association, FinalReport on the Exercise of UniversalJurisdictionin Respect of Gross
Human Rights Offences, 2 (2000) ("Under the principle of universal jurisdiction a state is
entitled or even required to bring proceedings in respect of certain serious crimes,
irrespective of the location of the crime, and irrespective of the nationality of the perpetrator
or the victim."); Kenneth C. Randall, Universal Jurisdiction under International Law, 66
TEX. L. Riv. 785, 790-91 (1988) (asserting that "all states have the right to assume
universal jurisdiction over ... war crimes, hijacking and sabotage of aircraft, the taking of
hostages, crimes against internationally protected persons, apartheid, and torture");
Velasquez Rodriguez Case, Judgment, Inter-Am. Ct. H.R. (ser. C). No. 1, 19 (June 26,
1987) (discussing Inter-American Commission on Human Rights recommendation to
Government of Honduras to investigate, prosecute and punish those responsible for
violations of right to life and right to personal liberty).
national court nor will a national amnesty protect her. A defendant

charged with such a crime can expect to be detained for a long period
of time before trial, denied bail although she poses no flight risk, and
perhaps subjected to a lower burden of proof.5
In light of the serious repercussions of labeling an interna-
tional crime "grave," one might expect the concept of gravity to
have reasonably well-defined and accepted content in international
law. In fact, the opposite is true. Individuals who craft, apply and
write about international criminal law invariably reference the seri-
6
ousness of the crimes at issue but rarely specify what they mean.
Prior to the adoption of the Rome Statute, there was no multi-
national treaty delineating the subject matter of international criminal
law and very little relevant practice. 7 Only four tribunals had exer-
cised international criminal jurisdiction: the Nuremberg and Tokyo
tribunals and the International Criminal Tribunals for Former Yugo-
slavia and Rwanda (respectively, "ICTY" and "ICTR"). In each of
these cases, the international community, or at least significant parts
of it, acted in response to situations involving hundreds of thousands
or even millions of victims of horrible crimes. The gravity of the
crimes was invoked as the primary justification for establishing the
tribunals, 8 but no one saw a need to explain what made the crimes se-
5. See in/ra Part III.B.

6. See, e.g., M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years:
The Need to Establish a Permanent International Criminal Court, 10 HARV. HUM. RTS. J.
11, 61 (1997) (declaring, when arguing for establishment of permanent international
criminal court that "[i]mpunity must no longer be the reward of those who commit the most
egregious international crimes and violations of human rights" without defining how to
determine which crimes are "the most egregious"); Quincy Wright, Proposal for an
InternationalCriminal Court, 46 AM. J. INT'L L. 60, 63 (1952) (discussing proposals for an
International Criminal Court that would "assur[e] the punishment of individuals for acts
which world opinion regards as peculiarly destructive of international peace and order,
peculiarly shocking to the conscience of mankind, and peculiarly likely to escape
punishment by national authority" without describing what characteristics of an
international crime would place it within the Court's jurisdiction).
7. Indeed, the Rome Statute does not purport to establish the contours of international
criminal law for any purpose other than the work of the ICC. Rome Statute, supra note 2,
art. 10.
8. For example, in the Security Council Resolutions that created the ICTR and the
ICTY, the Security Council invoked gravity rhetoric. See S.C. Res. 827, U.N. Doc
S/RES/827 (May 25, 1993) ("Expressing . . . grave alarm at continuing reports of
widespread and flagrant violations of international humanitarian law occurring within the
territory of the former Yugoslavia"); S.C. Res. 955, U.N. Doc S/RES/955 (Nov. 8, 1994)
("Expressing ...grave concern at the reports indicating that genocide and other systematic,
widespread and flagrant violations of international humanitarian law have been committed in
rious enough for international jurisdiction-it was simply obvious.

When the permanent International Criminal Court ("ICC" or
the "Court") was established it was no longer possible to rest the le-
gitimacy of international adjudication on expost collective judgments
about the gravity of crimes committed. The Court's prosecutor and
judges needed ex ante guidance about what sorts of crimes the inter-
national community considers appropriate for international adjudica-
tion. The Rome Statute thus enshrines in the ICC's admissibility re-
gime the idea that some crimes are "of sufficient gravity" to merit
international adjudication. 9
But the statute does not define the term. This was not a mere
oversight on the part of the drafters. Rather, the decision to leave
gravity ambiguous facilitated establishment of the Court by mediat-
ing between states with an expansive vision of the Court as a vehicle
for human rights promotion and states that preferred to limit the
Court's reach in the name of preserving sovereignty. ' 0 The vague-
ness of gravity enabled states on each side of the human
rights/sovereignty debate to support the creation of the Court even
though they did not share a vision of the Court's role in the world.
While the ambiguity of gravity served a creative purpose at
the ICC's inception, it has become increasingly problematic at the
operational stage. I have argued elsewhere that international criminal
law's reliance on the concept of gravity threatens the legitimacy of
the ICC II and undermines the Court's ability to justify its decisions
about which situations and cases to prosecute. 12 This Article elabo-
rates a third consequence of gravity's central role in international
criminal law: that as the regime expands, its justifications for curtail-
ing state sovereignty and limiting defendants' rights become more
and more attenuated.
International criminal law is no longer exclusively focused on
crimes like the Holocaust or the Rwandan genocide. The ICC prose-
cutor is currently considering whether to act with regard to situations
involving as few as six deaths and violence that occurred on a single
day. There has also been a gradual expansion of the definitions of
Rwanda").
9. Rome Statute, supra note 2, art. 17.
10. See Margaret M. deGuzman, Choosing to Prosecute: Expressive Selection at the
InternationalCriminal Court, 33 MICH. J. INT'L L. 265, 283 (2012) [hereinafter deGuzman,
Choosing to Prosecute].
11. Margaret M. deGuzman, Gravity and the Legitimacy o/ the InternationalCriminal
Court, 32 FORDHAM INT'L L.J. 1400 (2009).
12. deGuzman, Choosing to Prosecute, supra note 10.
crimes and modes of responsibility in international criminal law.

Moreover, there are good reasons to believe that international crimi-
nal law will continue to expand. These include, in particular, the
breadth of goals attributed to international courts and the incentives
of international prosecutors and judges.
This Article challenges the conventional wisdom that the
reach of international criminal law is limited to crimes of exceptional
gravity. It shows that international criminal law is expanding and
exposes the consequences of that expansion for states and defendants.
Part I demonstrates how the concept of gravity has facilitated the es-
tablishment and development of international criminal law by re-
maining indeterminate and thus sufficiently flexible to mediate be-
tween the competing claims of state sovereignty and human rights.
Part II shows how international judges and prosecutors have used
doctrine and discretion to broaden the types of harms and perpetra-
tors international criminal law encompasses, thereby diluting the
gravity requirement. It further elucidates the forces that make inter-
national criminal law's continued expansion highly probable, if not
inevitable. Part III explains why the expansion of international crim-
inal law should concern even the regime's supporters. When vague
notions of gravity are deployed to justify adjudicating borderline cas-
es other important interests are sometimes sacrificed. The use of
gravity to expand jurisdiction impinges on the interests of states in
maintaining authority within their territories; and its use to expand
modes of liability and curtail defenses threatens defendants' interests
in due process. The conclusion therefore suggests a solution to inter-
national criminal law's gravity problem: rather than using gravity to
mask the important interests at stake in decisions about international
adjudication, decision makers should surface and balance those inter-
ests. By engaging rather than avoiding conflicting interests, decision
makers can help to ensure that international criminal law serves to
promote global justice.
I. A VAGUE CONCEPT PROPELS THE DEVELOPMENT OF

INTERNATIONAL CRIMINAL LAW
As early an authority as Hugo Grotius believed that sover-

eignty was not absolute with regard to "injuries [that] excessively vi-
olate the law of nature or of nations." 13 The idea and rhetoric of
13. HUGO GROTIus, DE JURE BELLI AC PADS, LIBRI TRES (1646), bk. 11, ch. XX, para.
XL.1, in 2 THE CLASSICS OF INTERNATIONAL LAW 504 (F. W. Kelsey trans., Clarendon Press
1925) (emphasis added) ("[K]ings, and those who possess rights equal to those kings, have
gravity have played a pivotal role in justifying the elaboration of in-

ternational crimes and the creation of institutions to adjudicate
them. 14 Yet despite the pervasive invocations of the concept, little
effort has been made to define gravity. This was not inevitable-like
the 12-mile nautical sea, states could have placed clearer gravity-
based parameters on international criminal jurisdiction. For example,
international crimes could be limited to crimes affecting a certain
number of victims, 15 or involving cross-border harm, or perpetrated
by government actors. Instead, the creators of international criminal
law have chosen to leave the concept ambiguous.
The failure to elaborate what is meant by gravity is not mere-
the right of demanding punishments not only on account of injuries committed against
themselves or their subjects, but also on account of injuries which do not directly affect them
but excessively violate the law of nature or of nations in regard to any persons
whatsoever."). But see FRANCISCO SUAREZ, SELECTIONS FROM THREE WORKS 817, reprinted
in 2 THE CLASSICS OF INTERNATIONAL LAW 814 (G. Williams, A. Brown & J. Waldron trans.,
Clarendon Press 1944) (quoted in Theodor Meron, Common Rights oqfMankind in Gentili,
Grotius, and Suarez, 85 AM. J. INT'L L. 110, 113 (1991) ("[T]he assertion made by some
writers, that sovereign kings have the power of avenging injuries done in any part of the
world, is entirely false, and throws into confusion all the orderly distinctions of
jurisdiction.").
14. See, e.g., Charter of the International Military Tribunal, § 1, art. 6, Aug. 8, 1945,
available at http://avalon.law.yale.edu/imt/imtconst.asp. [hereinafter Nuremberg Charter]
(limiting jurisdiction to "major war criminals"); Statute of the International Criminal
Tribunal for the Former Yugoslavia, S.C. Res. 827, art. 1, Annex, U.N. Doc. S/RES/827
(May 25, 1993) [hereinafter ICTY Statute] (granting jurisdiction over "serious violations of
international humanitarian law"); Statute of the International Criminal Tribunal for Rwanda,
S.C. Res. 955, art. 1, Annex, U.N. Doc. S/RES/955 (Nov. 8, 1994) [hereinafter ICTR
Statute] (granting jurisdiction over "serious violations of international humanitarian law");
Statute of the Special Court for Sierra Leone, art. 1(1), Jan. 16, 2002, 2178 U.N.T.S. 138,
available at http://www.sc-sl.org/LinkClick.aspx'?fileticket uClndlMJeEw / 3d&tabid 176
[hereinafter SCSL Statute] (limiting jurisdiction to "persons who bear the greatest
responsibility for serious violations of international humanitarian law"); Law on the
Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution
of Crimes Committed During the Period of Democratic Kampuchea, art. 1, Oct. 27, 2004,
NS/RKM/1004/006 [hereinafter ECCC Statute] (establishing jurisdiction over "those who
were most responsible for the crimes and serious violations of Cambodian penal law,
international humanitarian law and custom, and international conventions recognized by
Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979");
Rome Statute, supranote 2, pmbl. (establishing jurisdiction over "the most serious crimes of
concern to the international community as a whole").
15. Cf.' Alex J. Bellamy, Mass Atrocities and Armed Conflicts: Links, Distinctions,
and Implications for the Responsibility to Prevent, THE STANLEY FOUNDATION, 2 (Feb.
2011), http://www.stanleyfoundation.org/publications/pab/bellamypab2201 l.pdf (defining
genocide and mass atrocities as mass killings involving minimum of 5,000 intentionally
killed civilians).
ly a consequence of the difficulty of the definitional task-although

that is certainly an important factor. Rather, the concept has been left
undefined because its ambiguity has served a productive function in
the regime's development: to mediate between the competing pulls
of state sovereignty and the burgeoning human rights movement.
The evolution of international criminal law has been part of the larger
movement to limit or redefine state sovereignty to accommodate in-
creasingly powerful norms of universal human rights. 16 What fol-
lows demonstrates how gravity's indeterminacy has enabled the de-
velopment of international criminal law at the political level by
simultaneously reassuring states concerned about sovereignty and
providing space for human rights promotion.
A. The Birth ofInternationalCriminalLaw at Nuremberg
After World War I, there was some discussion of establishing

a court to prosecute crimes against humanity, but the world was not
yet ready for the necessary limitation of sovereignty and the effort
was abandoned. 17 World War II proved to be the turning point. Af-
ter the Nazis ruthlessly slaughtered millions of people the Allies saw
fit to conduct a trial jointly-the first international criminal trial. 18
Gravity provided the primary justification for the creation of the In-
ternational Military Tribunal at Nuremberg. When the defendants
objected that some of the charges violated the principle of legality, 19
16. Jan Klabbers, The Spectre of InternationalCriminal Justice: Third States and the
]CC, in INTERNATIONAL CRIMINAL LAW & THE CURRENT DEVELOPMENT OF PUBLIC
INTERNATIONAL LAW 49 (Andreas Zimmerman ed., 2003). See also ERIC K. LEONARD, THE
ONSET OF GLOBAL GOVERNANCE: INTERNATIONAL RELATIONS THEORY AND THE
INTERNATIONAL CRIMINAL COURT 188 89 (2005); Abram Chayes & Anne-Marie Slaughter,
The ICC and the Future of the Global Legal System, in THE UNITED STATES AND THE
INTERNATIONAL CRIMINAL COURT: NATIONAL SECURITY & INTERNATIONAL LAW 237, 240
(Sarah B. Sewall & Carl Kaysen eds., 2000) ("The existence of exclusive domestic
jurisdiction is now increasingly conditional on conformity with international rules and
principles, especially human rights norms.").
17. The United States objected to the proposal on the grounds that "crimes against
humanity" did not exist under international law. See Memorandum of Reservations
Presented by the Representatives of the United States to the Report of the Comm'n on
Responsibilities (Apr. 4, 1919), Annex II, reprinted in Commission on the Responsibility of
the Authors (f the War and on En/brcement (f Penalties: Report Presented to the
PreliminaryPeace Conerence (Mar.29, 1919), 14 AM. J. INT'L L. 95, 134 (1920).
18. But see supranote I (analyzing whether Nuremberg was truly "international").
19. The International Military Tribunal (IMT) was the first court to adjudicate "crimes
against peace," which are the precursors to the crime of aggression, and "crimes against
humanity," which were included to enable the IMT to prosecute crimes the Nazis had
the judges demurred, invoking the gravity of the crimes. 20

No one felt a need to explain what made the crimes of the
Holocaust grave. But the opposing tug of sovereignty was felt even
in the face of the worst crimes the world had ever seen. For example,
in defining "crimes against humanity," the drafters did not simply
include all large-scale murders, rapes and other crimes of violence. 2 1
Instead, they limited crimes against humanity to crimes committed in
connection with the war. 22 This "war nexus" provided at least an ar-
guable link to the preexisting international law that respected state
sovereignty. 23 The gravity of the crimes committed in World War II
thus solidified the idea of international criminal jurisdiction, but the
implementation of that idea still evidenced considerable respect for
the principle of state sovereignty.
After World War II, the UN General Assembly asked the In-
ternational Law Commission ("ILC" or the "Commission"), an ex-
pert group under its aegis, to study the possibility of establishing a
committed against their own citizens, which were not included in the traditional definition of
war crimes.
20. Judgment, 22 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL
MILITARY TRIBUNAL, NUREMBERG, 14 NOVEMBER 1945 1 OCTOBER 1946, 462 (1948)
[hereinafter NUREMBERG] (focusing on crimes against peace); see also Beth Van Schaack,
Crimen Sine Lege: Judicial Lawmaking at the Intersection of Law and Morals, 97 GEO. L.J.
119, 126 (2008).
21. The definition did require that the crimes be committed against a "civilian
population." Nuremberg Charter, supra note 14, art. 6(c). This might be interpreted to
include some notion of scale even though the Nuremberg judgment did not reflect that
understanding.
22. See Nuremberg Charter, supra note 14, art. 6(c) (defining crimes against humanity
as "murder, extermination, enslavement, deportation, and other inhumane acts committed
against any civilian population, before or during the war; or persecutions on political, racial
or religious grounds in execution of or in connection with any crime within the jurisdiction
of the Tribunal, whether or not in violation of the domestic law of the country where
perpetrated"); NUREMBERG, supra note 20, at 468 (determining that, for acts to constitute
crimes against humanity, they must be made "in execution of, or in connection with" the
war).
23. See Beth Van Schaack, The Definition of Crimes Against Humanity: Resolving the
Incoherence, 37 COLUM. J. TRANSNAT'L L. 787, 791 (1999) ("The war nexus allowed the
drafters of the Charter to condemn specific inhumane acts of Nazi perpetrators committed
within Germany without threatening the entire doctrine of state sovereignty."); see also
WILLIAM A. SCHABAS, GENOCIDE IN INTERNATIONAL LAW: THE CRIME OF CRIMES 10-11
(2000) (arguing that the war nexus was included because "the great powers that drafted [the
Nuremberg Charter] were loathe to admit the notion, as a general and universal principle,
that the international community might legitimately interest itself in what a State did to its
own minorities.").
permanent international criminal court 24 and to prepare a "draft code

of offences against the peace and security of mankind" ("Draft
Code"). 25 The ILC was thus supposed to consider the feasibility of
an international criminal jurisdiction and to try to figure out what
crimes might be the subject of such jurisdiction. 2 6 The ensuing ILC
deliberations provide further evidence of the human rights/sover-
eignty tension that has characterized the development of international
criminal law and of gravity's role as mediator.
In his first report on the "Question of International Criminal
Jurisdiction," Special Rapporteur Ricardo Alfaro noted that a mem-
ber of the Commission had objected that such jurisdiction would be
contrary to the principle of sovereignty. 27 Alfaro responded, first,
that international jurisdiction was necessary to address crimes com-
mitted by or at the instigation of governments. Second, he claimed
that sovereignty must yield to the need "to prevent crimes against the
peace and security of mankind and crimes against the dictates of the
human conscience, including therein the hideous crime of geno-
cide." 28 In other words, sovereignty should not shield from interna-
tional law crimes that either stem from abuses of that sovereignty or
are especially serious.
The same rationales dominated the early discussion of the
Draft Code. At first, in seeking to identify the essence of crimes to
be included in the Draft Code, the ILC looked to their "highly politi-
cal nature." 29 Crimes were international when they were committed
or tolerated by a state and threatened international peace. 30 The
Commission therefore initially limited crimes against humanity to
24. G.A. Res. 260 (111) B, at 177, U.N. GAOR, 3d Sess., U.N. Doc. A/RES/260(111)
(Dec. 9, 1948).
25. G.A. Res. 177 (11), U.N. GAOR, 2d Sess., U.N. Doc. A/RES/177(11), at 111 (Nov.
21, 1947). In 1987, the Draft Code was renamed "Draft Code of Crimes Against the Peace
and Security of Mankind." G.A. Res. 42/151, at 292, U.N. Doc. A/RES/42/151 (Dec. 7,
1987) (emphasis added).
26. The Commission considered that pending the establishment of an international
criminal court the crimes in the Draft Code could be prosecuted by national courts. Report of
the InternationalLaw Commission to the GeneralAssembly, 6 U.N. GAOR, Supp. No. 9, at
10 11, U.N. Doc A/1858 (1951), reprinted in [1951] 2 Y.B. Int'l L. Comm'n 123, 134, U.N.
Doc. A/CN.4/48.
27. Ricardo J. Alfaro, Special Rapporteur, Report on the Question (f International
CriminalJurisdiction, [1950] 2 Y.B. Int'l L. Comm'n 1, 16 17, U.N. Doc. A/CN.4/15.
28. Id. at 17.
29. J. Spiropoulos, Special Rapporteur, Draft Code ofQffences Against the Peace and
Security of Mankind,[1950] 2 Y.B. Int'l L. Comm'n 253, 259, U.N. Doc. A/CN.4/25.
30. Id.
crimes committed by or with the toleration of the State. 31 The abuse

of sovereignty was thus what made crimes against humanity of con-
cern to the entire world. Indeed, this idea remains central in some of
the scholarship and jurisprudence of international criminal law to-
day.32
But in the 1980s, when the ILC deliberations resumed after a
long hiatus, the new Special Rapporteur, Doudou Thiam, moved to
change the focus of the ILC's work from politics to gravity. 33 The
Commission agreed and voted unanimously to reject the 1954 Draft
Code's political element and focus instead on the criterion of "seri-
ousness." 34 Crimes against humanity would now be defined as "sys-
tematic or mass violations of human rights" 35 and all but "excep-
31. Report ofthe InternationalLaw Commission to the GeneralAssembly: Report of

the International Law Commission Covering the Work ofits Sixth Session, 3 June 28 July
1954, 9 U.N. GAOR, Supp. No. 9, at 10, U.N. Doc. A/5509 (1954), reprinted in [1954] 2
Y.B. Int'l L. Comm'n 140, 150, U.N. Doc. A/CN.4/882693.
32. See, e.g., M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio
Erga Omnes, 59 L. & CONTEMP. PROBS. 63, 69 (1996) (asserting implicit requirement that
for conduct to be considered a crime that "affect[s] the interests of the world community as
a whole" it must be product of "state-action or state-favoring policy"); William A. Schabas,
State Policy as an Element of International Crimes, 98 J. CRIM. L. & CRIMINOLOGY 953
(2008) (arguing that a state policy is an essential requirement of international crimes).
33. In his first report, Thiam noted that certain crimes may become international due to
State complicity but others "are committed on such a scale that it is reasonable to ask
whether they have not made the shift from internal law to international law and become
international crimes by their nature." Doudou Thiam, First Report on the Draft Code (f
Qffences Against the Peace and Security of Mankind, [1983] 2 Y.B. Int'l L. Comm'n 137,
143, U.N. Doc. A/CN.4/364. He lamented, "[i]n any event, it is clear that the distinction
between crimes under internal law and crimes under international law is relative and at times
arbitrary." Id. Thiam was not satisfied with the 1954 Draft Code's reliance on politics as
the defining feature of international crimes, feeling that it did not adequately capture the
essence of Nuremberg. He wrote: "It may be that the authors of the Charter of the
Niirnberg Tribunal were struck not so much by the political content of the crimes with which
they were concerned as by their gravity, their atrociousness, their scale and their effects on
the international community." Id.
34. Report of the International Law Commission on the Work of Its Thirty-Fith
Session (3 May-22 July 1983), 38 U.N. GAOR, Supp. No. 10, at 21, U.N. Doc. A/38/10
(1983), reprinted in [1983] 2 Y.B. Int'l L. Comm'n 1, 14, U.N. Doc. A/CN.4/SER.A.1983/
Add. I (Part 2).
35. Report of the International Law Commission on the Work of Its Forty-Third
Session (29 April-19 July 1991), 46 U.N. GAOR, Supp. No. 10, at 247, U.N. Doc. A/46/10
(1991), reprinted in [1991] 2 Y.B. Int'l L. Comm'n 1, 103, U.N. Doc
A/CN.4/SER.A/1991/Add.1 (Part 2). The ILC determined that the "mass-scale" element
was determined by the number of people affected by the violations or the entity that was
affected by the violations. Id.
tionally serious" war crimes would be omitted. 36 Although the ILC

had numerous discussions about what "serious" would mean for
purposes of defining international crimes, 37 it ultimately gave up,
38
concluding that many factors could be relevant.
The ILC's discussions of a potential international criminal
court in the 1990s also show this increased emphasis on gravity.
Although the immediate impetus for the renewed interest in an Inter-
national Criminal Court (ICC) was a plea from Trinidad and Tobago
for help with its problem of transnational drug trafficking, 39 the Gen-
eral Assembly asked the ILC to look into the matter not just for such
40
transnational crimes but for the crimes in the Draft Code as well.
The ILC's draft statute for the ICC (ILC Draft Statute) thus stated in
the preamble that the court would "exercise jurisdiction only over the
most serious crimes, that is to say, crimes of concern to the interna-
tional community as a whole."' 4 1 Although the ILC Draft Statute
abandons the Draft Code's heading of "systematic or mass violations
of human rights" in favor of the more traditional "crimes against
humanity," the commentary emphasizes that such crimes are defined
36. Id. at 104. The 1996 Draft Code dropped this language, but added the requirement
that war crimes be committed in a systematic manner or on a large scale. Report of the
International Law Commission on the Work of its Forty-Eighth Session (6 May 26 July
1996), 51 U.N. GAOR, Supp. No. 10, at 110-11, U.N. Doc. A/51/10 (1996), reprinted in
[1996] 2 Y.B. Int'l L. Comm'n 1, 53 U.N. Doc. A/CN.4/SER.A/1996/Add.1 (Part 2).
37. See, e.g., Report of the InternationalLaw Commission on the Work of Its Thirty-
Fifth Session (3 May-22 July 1983), 38 U.N. GAOR, Supp. No. 10, at 21, U.N. Doc.
A/38/10 (1983), reprinted in [1983] 2 Y.B. Int'l L. Comm'n 1, 14 U.N. Doc.
A/CN.4/SER.A/1983/Add. 1 (Part 2) (arguing that seriousness can be measured "either by
the extent of the calamity or by its horrific character, or by both at once") (emphasis added);
Report of the InternationalLaw Commission on the Work of Its Thirty-Sixth Session (7 May
27 July 1984), 39 U.N. GAOR, Supp. No. 10, at 16 17, U.N. Doc. A/39/10 (1984),
reprintedin [1984] 2 Y.B. Int'l L. Comm'n 1, 11-12, U.N. Doc A/CN.4/SER.A/1984/Add.1
(Part 2) (considering such factors as discriminatory motive, the identity of the victims and
the nature of the interest infringed).
38. Sompong Sucharitkul, Special Rapporteur, Sixth Report on Jurisdictional
Immunities o!States and their Property,[1984] 2 Y.B. Int'l L. Comm'n 1, 11-12, U.N. Doc
A/39/10 (Aug. 9, 1984).
39. See Permanent Representative of Trinidad and Tobago, Letter dated Aug. 21, 1989
from the Permanent Representative of Trinidad and Tobago to the Secretary-General, U.N.
Doc. A/44/195 (1989).
40. G.A. Res. 44/39, U.N. Doc. A/RES/44/39 (Dec. 4, 1989).
41. Report of the InternationalLaw Commission on the Work of Its Forty-Sixth Session
(2 May 22 July 1994), 49 U.N. GAOR, Supp. No. 10, at 44, U.N. Doc. A/49/10 (1994),
reprinted in [1994] 2 Y.B. Int'l L. Comm'n 1, 27, U.N. Doc. A/49/10.
by reference to their gravity. 42

In sum, over time the ILC's work, responding to the burgeon-
ing human rights movement, showed decreasing concern for state
sovereignty and heightened reliance on gravity to justify international
jurisdiction. International criminal law thus became a means of pun-
ishing and preventing serious human rights violations rather than
merely a response to abuses perpetrated by state actors.
B. PhaseII The Ad Hoc InternationalCriminalTribunals
Another turning point in the development of international

criminal law came in 1993. By then, the post-Soviet geo-political
climate had accelerated the human rights movement, making it possi-
ble for the Security Council to establish the ICTY to address the
atrocities perpetrated during the dissolution of Yugoslavia. The fol-
lowing year, the ICTR was created in response to the Rwandan geno-
cide.
State actors and representatives of international and non-
governmental organizations that participated in creating these institu-
43
tions employed gravity rhetoric to justify international jurisdiction.
Moreover, the jurisdiction of those institutions was limited to "seri-
ous" crimes, namely war crimes, crimes against humanity and geno-
cide. 44 Like after World War II, no one saw a need to explain or de-
fine gravity in any detail-the crimes in the former Yugoslavia and
Rwanda qualified under any interpretation.
The creators of the ad hoc tribunals were not especially con-
42. See id. at 40 ("It is the understanding of the Commission that the definition of
crimes against humanity encompasses inhumane acts of a very serious character involving
widespread or systematic violations aimed at the civilian population .... The hallmarks of
such crimes lie in their large-scale and systematic nature.").
43. See S.C. Res. 808, U.N. SCOR, 48th Sess., U.N. Doc. S/RES/808 (Feb. 22, 1993)
(establishing ICTY in response to "widespread violations of humanitarian law ... including
reports of mass killings and the continuance of ... ethnic cleansing"); S.C. Res. 955, U.N.
SCOR, 49th Sess., U.N. Doc. S/RES/955 (Nov. 8, 1994) (establishing ICTR in response to
"reports indicating that genocide and other systematic, widespread and flagrant violations of
international humanitarian law have been committed in Rwanda"). Galina Nelaeva,
Establishment of the International Criminal Tribunal in the Former Yugoslavia (ICTY):
Dealing with the "War Raging At the Heart of Europe, " II ROMANIAN J. EUR. AFF. 100,
106 (2011) ("[F]requent references to WWII by the politicians, the media and the activists in
their analysis of the Yugoslav conflict showed that the conflict was perceived as extremely
brutal .... ).
44. See, e.g., ICTY Statute, supra note 14, art. 1 5; ICTR Statute, supra note 14, art.
cerned about respecting sovereignty because the states in question

were weak or non-existent. Nonetheless, the drafters of the ICTY
statute included the Nuremberg Charter's war nexus in the definition
of crimes against humanity, which had the effect of protecting sover-
eignty by excluding crimes unconnected to armed conflict from the
tribunal's jurisdiction. 45 But this reticence to expand crimes against
humanity was short lived.
When the ICTR's statute was drafted the following year in re-
sponse to atrocities that were not all connected to an armed conflict,
the drafters had little trouble jettisoning that requirement. They de-
fined crimes against humanity instead by reference to the widespread
or systematic nature of the crimes. 46 These elements essentially re-
flect gravity: that is, the quantity and quality of harms inflicted. The
ICTR statute also reflects a gravity-inspired expansion in the defini-
tion of war crimes, as they are no longer limited to crimes committed
in international armed conflict. 47 Gravity thus served both to justify
the creation of the ad hoc tribunals and to expand the substantive law
they applied beyond that used at Nuremberg.
C. PhaseIII: The ICC
Gravity played its most important constructive role at the

Rome Conference where the ICC statute was adopted. There, gravity
served repeatedly to mediate conflicts between states seeking to es-
tablish a strong court in the service of human rights promotion and
states focused on protecting the traditional prerogatives of sovereign-
ty. 4 8 When states in these camps could not agree on a statutory pro-
vision, the solution adopted was often to insert a reference to gravity
or seek to reassure the sovereignty-focused states by reiterating that
45. ICTY Statute, supra note 14, art. 5; Van Schaack, supra note 23, at 792 (noting
that because the Nuremberg Tribunal required an armed conflict nexus, tribunals and
international law drafters after Nuremberg treated the armed conflict nexus as a substantive
element of crimes against humanity).
46. ICTR Statute, supra note 14, art. 3 ("The International Tribunal for Rwanda shall
have the power to prosecute persons responsible for the following crimes committed as part
of a widespread or systematic attack against any civilian population .... ).
47. See id. art. 4 (criminalizing violations of Additional Protocol I, which applies to
non-international armed conflicts).
48. This dichotomy simplifies the complex web of policy objectives states sought to
further by supporting or opposing the ICC. Nonetheless, the rough division of delegations to
the Rome Conference into human rights-promoting and sovereignty-protecting camps
represents an important theme in the negotiations and helps elucidate the important role
gravity played in producing the Court.
the Court would deal only with crimes of exceptional gravity.

In defining war crimes, for example, the human rights-
promoting states wanted the ICC to have jurisdiction over all war
crimes no matter how minor, 4 9 but for other states this was consid-
ered too great an incursion on sovereignty. 50 The latter group of
states preferred to limit the Court's jurisdiction over war crimes to
those "committed as part of a plan or policy or as part of a large-
scale commission of such crimes." 5 1 In other words, they wanted the
Court's jurisdiction to be limited to war crimes made particularly
grave by their scale or level of organization. The issue could not be
resolved in the negotiations. Instead, in the waning hours of the con-
ference, the United Nations officials managing the process presented
states with a take-it-or-leave-it "final package" that reflected a com-
promise: the Court would have jurisdiction over war crimes "in par-
ticular" when committed as part of a plan or policy or on a large
scale. 52
This provision contains a double ambiguity. First, the refer-
ence to "plan or policy or on a large scale" is uncertain in the way
that most efforts to expound gravity are uncertain. What degree of
organization is required for a plan or policy? What number of vic-
tims or breadth of geographic spread qualifies as "large scale"? In
49. U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an

International Criminal Court, Rome, It., June 15-July 17, 2008, U.N. Doc.
A/CONF.183/C.1 /SR.25 (July 8, 1998) (reporting statement by New Zealand's delegate that
"[t]here was no need for a threshold for war crimes since international law was already clear
and any threshold adopted might limit the existing rules"); U.N. Diplomatic Conference of
Plenipotentiaries on the Establishment of an International Criminal Court, Rome, It., June
15 July 17, 2008, U.N. Doc. A/CONF.183/C.I/SR.27 (July 8, 1998) (noting that the
representative of the Dominican Republic argued that the proposed thresholds for war crimes
should be rejected because all intentional killings are equally serious, "whether or not [they
are] part of a plan or general policy").
International Criminal Court, Rome, It., June 15-July 17, 2008, U.N. Doc.
A/CONF. 183/C. 1/SR.26 (July 8, 1998) (U.S. representative stating fundamental premise that
the "Court must deal only with certain heinous crimes of concern to the international
community, which were committed at a relatively high threshold of criminal activity").
International Criminal Court, Report of the PreparatoryCommittee on the Establishment of
an International Criminal Court, at 25, U.N. Doc. A/Conf.183/2/Add.1 (Apr. 12, 1998),
available at http://www.un.org/law/n9810105.pdf.
52. Rome Statute, supra note 2, art. 8. See also Mahnoush H. Arsanjani, The Rome
Statute of the International Criminal Court, 93 AM. J. INT'L L. 22, 33 (1999) (discussing
debate about which war crimes were so serious as to be of "concern to international
community" and describing language of Article 8(1) as compromise).
addition, the use of the term "in particular" leaves it unclear when, if
ever, the Court should exercise jurisdiction over war crimes that do
not meet this gravity-based threshold. Leaving these questions open
was constructive-it enabled some sovereignty-focused states to
support the Court while reassuring the human rights-focused states
that the Court would have the ability to adjudicate all war crimes.
The outcome of the war crimes debate in Rome probably rep-
resents the most significant expansion of international criminal juris-
diction to date. Prior international tribunals had exercised jurisdic-
tion over war crimes only in contexts where such crimes were
committed on a widespread and systematic basis: the Holocaust,
ethnic cleansing in the former Yugoslavia and the Rwandan geno-
cide. The statutes of those courts did not require such a context be-
cause they were set up in response to the obviously massive nature of
the crimes in each situation. By including only a suggestive rather
than a mandatory gravity-based threshold for war crimes, the Rome
Statute provides the first international jurisdiction over situations that
involve only war crimes at the low end of the gravity spectrum.
A similar debate took place in the context of crimes against
humanity. The sovereignty-focused states wanted to limit crimes
against humanity to crimes that are particularly serious because they
are both widespread and they are committed systematically. In con-
trast, the human rights-promoting states wanted these gravity markers
to be alternatives. 53 After heated discussions, the Canadian delega-
tion brokered a compromise: the alternative formulation would be
used but an additional provision would be added defining "attack" as
''a course of conduct involving the multiple commission of [the
enumerated] acts against any civilian population, pursuant to or in
furtherance of a State or organizational policy to commit such at-
54
tack."
Although the gravity markers are thus spelled out in greater
detail for crimes against humanity than for war crimes, the language
remains ambiguous. How many acts qualify as "multiple" and what
degree of organization is required for an "organizational policy"?
Again, this ambiguity was constructive. A delegation seeking to
convince its legislature that a high bar had been set for crimes against
humanity could read the requirements of "multiple" acts and a "pol-
icy" as performing that function. At the same time, a human rights-
focused delegation could claim victory on the grounds that the gravi-
53. See Darryl Robinson, Defining "Crimes Against Humanity" at the Rome
Conference, 93 AM. J. INT'L L. 43, 47 (1999); Arsanjani, supra note 52, at 31.
54. Rome Statute, supranote 2, art. 7(2)(a).
ty markers of "widespread" and "systematic" were listed as alterna-

tives.
In addition to these ambiguous gravity references in the defi-
nitions of crimes, the statute contains an explicit gravity limitation on
the exercise of the Court's jurisdiction: it requires the Court to deem
inadmissible cases "not of sufficient gravity to justify further action
by the Court." 55 Given the importance of this provision in determin-
ing when the Court can act, one might expect that the drafters en-
gaged in lengthy debate about what gravity should mean in this con-
text. In fact, there was virtually no discussion of this issue 56 and ten
years into the Court's life it remains unclear what the gravity thresh-
old requires. 57 This failure to elaborate the meaning of gravity has
helped to enable the Court's establishment and development. It has
allowed states to support the Court without having to share a vision
of its role in the world. Human rights-promoting states can see the
ICC as an institution that broadly seeks to promote human rights and
humanitarian law while sovereignty-focused states can maintain a
much more limited vision of the Court's work.
The gravity threshold for admissibility also enabled the hu-
man rights-focused states to expand the lists of war crimes and
crimes against humanity included in the Rome Statute compared to
prior statutes. 5 8 When sovereignty-focused states expressed concern
over the inclusion of less serious types of crimes, they were reassured
that the gravity threshold would ensure that the Court exercises juris-
59
diction only over sufficiently serious instances of those crimes.
55. Rome Statute, supra note 2, art. 17(l)(d).

56. For a more detailed discussion of the legislative history of this provision see
Margaret M. deGuzman, Gravity and the Legitimacy of the International Criminal Court, 32
FORDHAM INT'L L. J. 1400, 1424 25 (2009).
57. Although the Appeals Chamber has made statements about what the gravity
threshold does not require, it has yet to explain what it does require. See Prosecutor v.
Ntaganda Dyilo, Case No. ICC-01/04-169, Judgment on the Prosecutor's Appeal, 73 75
(July 13, 2006), http://www.icc-cpi.int/iccdocs/doc/doc183559.pdf (Appeals Chamber
rejecting Pre-Trial Chamber's factor-based gravity test).
58. Rome Statute, supra note 2, art. 7, 8. With regard to war crimes, the Rome Statute
includes a long list of crimes applicable in both international and non-international armed
conflicts, including some crimes that are relatively low on the gravity spectrum like making
improper use of a flag of truce resulting in serious personal injury. Id. art. 8(2).
59. See Arsanjani, supra note 52, at 31 (noting "opening clause of Article 7 setting
forth the general threshold for crimes against humanity should be read together with its
subparagraph 2(a). This approach provides a basis for compromise on several other acts
listed in Article 7 as crimes against humanity."). Arsanjani notes that the use of the
disjunctive ("as part of a widespread or systematic attack") was only accepted because the
D. The post-Rome Conference InternationalTribunals
The momentum created by the ad hoc tribunals and the adop-

tion of the Rome Statute fueled further institutional expansion as sev-
eral additional international and quasi-international-or "hybrid"-
tribunals were established. 60 Most of these dealt with situations
where the crimes were undeniably grave in terms of both the quantity
and quality of harm inflicted, including the "auto-genocide" 6 1 in
Cambodia and the large-scale and systematic massacres, rapes and
tortures in Sierra Leone and East Timor.
One institution stands out, however, as a remarkable expan-
sion of international criminal jurisdiction-the Special Tribunal for
Lebanon (STL). The STL was established by the Security Council to
prosecute essentially the killing of one person-former Lebanese
Prime Minister Rafiq Hariri. 62 Unlike the Security Council resolu-
tions establishing the other ad hoc tribunals, the STL's founding
document says nothing about the serious nature of the crimes at is-
sue. 63 Indeed, the STL's subject matter jurisdiction is limited to
crimes under Lebanese law rather than international crimes. The es-
Art. 7, para. 2(a) language (requiring "multiple commission of acts") was seen as properly
limiting the ICC's jurisdiction to only sufficiently grave or serious commissions of the
enumerated offenses. Id. Arsanjani contends that because of this purportedly limiting effect
of a seriousness/gravity requirement, a compromise was made possible that allowed the
inclusion of several of the specific offenses listed in Art. 7. Id.
60. Agreement Between the United Nations and the Government of Sierra Leone on
the Establishment of a Special Court for Sierra Leone, U.N. Sierra Leone, Jan. 16, 2002,
2178 U.N.T.S. 137, available at http://www.sc-sl.org/LinkClick.aspx?fileticket=CLkIrM
QtCHg%3d&tabid=176; Agreement Between the United Nations and the Royal Government
of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed
During the Period of Democratic Kampuchea, U.N.-Cambodia, June 6, 2003, 2329 U.N.T.S.
117, available at http://www.unakrt-online.org/Docs/Court / 20Documents/Agreement
between UN and RGC.pdf; United Nations Transitional Administration in East Timor
(UNTAET), Regulation 2000115: On the Establishment of Panels with Exclusive
Jurisdiction over Serious Criminal QOtinces, UNTAET/Reg/2000/15 (June 6, 2000),
available at http://www.un.org/en/peacekeeping/missions/past/etimor/untaetR/RegO015
E.pdf.
61. The atrocities of the Khmer Rouge have been termed "auto-genocide" because,
although they do not meet the technical definition of genocide, they involved massive killing
of ethnic Khmer by ethnic Khmer.
62. Statute of the Special Tribunal for Lebanon, S.C. Res. 1757, Annex, art. 1(1), U.N.
Doc. S/RES/1757 (May 30, 2007) (providing tribunal jurisdiction to prosecute "persons
responsible for the attack of 14 February 2005 resulting in the death of former Lebanese
Prime Minister Rafiq Hariri and in the death or injury of other persons").
63. Id.
tablishment of the STL thus seems to manifest, at least among some

Security Council members, a new understanding that international
criminal jurisdiction can be employed even without reference to
gravity.
The history of international criminal jurisdiction thus demon-
strates that gravity-a vague idea about the nature of crimes-has
played a key role in mediating between concerns about human rights
and state sovereignty. In so doing, it has facilitated the establishment
of international courts and tribunals as well as the expansion of the
laws they apply.
I. THE EXPANSIONIST TREND IN INTERNATIONAL CRIMINAL LAW
In their exploration of the history of international criminal

law, Beth Van Schaack and Ronald Slye write that "the history of in-
ternational criminal law is marked by greater and greater incursions
into arenas that were historically the exclusive province of sovereign
states." 64 The preceding Part showed how that expansion took place
at the political level through the creation of tribunals with increased
power over a broadening subject matter. What follows demonstrates
how these institutions have also expanded from within through judg-
es' interpretation of their subject matter jurisdiction and the ICC
prosecutor's exercise of discretion to decide what situations and cas-
es to investigate and prosecute.
Specifically, this Part argues that the judges and prosecutors
have interpreted their tasks so as to bring more and more kinds of
crimes and defendants within the purview of international criminal
law. Again, the ambiguity of gravity has been helpful, with judges
and prosecutors frequently invoking the concept to justify their ac-
tions. Judges explain broad interpretations of crimes by reference to
the gravity of those crimes and the ICC prosecutor invariably invokes
the gravity of crimes committed to justify his decisions about what
situations to investigate and which cases to prosecute. The indeter-
minacy of the concept of gravity has thus facilitated expansion not
just at the political level but at the institutional level as well.
Ironically, by invoking gravity to justify expansion, interna-
64. BETH VAN SCHAACK & RONALD C. SLYE, INTERNATIONAL CRIMINAL LAW AND ITS
ENFORCEMENT: CASES AND MATERIALS, (2d ed. 2010) (supplemental material on history of
war crimes). See also Jenia Iontcheva Turner, Del nse Perspectives on Law and Politics in
International Criminal Trials, 48 VA. J. INT'L L. 529, 587 (2008) (noting that treaty
provisions have been "interpreted and applied liberally" by international tribunals).
tional judges and prosecutors have diluted the gravity of the crimes
they investigate and adjudicate. While gravity is an elusive concept,
as already discussed, commentators generally agree that the gravity
of a case, or cases within a situation, requires some kind of evalua-
tion of the harms inflicted and the culpability of perpetrators-a task
that is both quantitative and qualitative. 65 The notion of harm thus
includes consideration of such factors as the number of victims af-
fected, the nature of the crimes, the way they were committed and
their impact beyond the immediate victims. 6 6 Culpability relates to
the mental state of the defendant, including his or her role in the
crimes. The evidence presented below suggests that international
criminal law is expanding along these dimensions in ways that tend
to decrease the gravity of the crimes adjudicated.
After demonstrating that international criminal law is expand-
ing in ways that dilute gravity, this Part explains why such expansion
is likely to continue. It is possible that states-particularly sover-
eignty-focused states-will stem the tide. States could resist expan-
sion either directly by amending the Rome Statute to define more
strictly the jurisdictional requirements or indirectly by putting pres-
sure on the Court to adopt a narrow view of its jurisdiction. Alterna-
tively, the Court's prosecutor or its judges or both could themselves
adopt a more conservative approach to their work. But for the rea-
sons elaborated in Section B below, it is significantly more likely that
the expansionist trend will continue for the foreseeable future.
65. ICC-OTP, Draft Policy Paper on PreliminaryExaminations, 70, (Oct. 4, 2010),

available at http://www.icc-cpi.int/NR/rdonlyres/E278F5A2-A4F9-43D7-83D2-6A2C9C
F5D7D7/282515/OTPDraftpolicypaperonpreliminaryexaminations04101.pdf [hereinafter
Draft Policy Paper on Preliminary Examinations] (describing gravity as "both quantitative
and qualitative" and stating that determinations of gravity include assessment of scale of
crimes, nature of crimes, manner of commission, and impact of crimes). See Situation in the
Republic of Kenya, Case No. ICC-01/09, Decision Pursuant to Article 15 of the Rome
Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya,
1160-61 (Mar. 31, 2010) (noting when ICC considers gravity in context of authorizing
investigation into situation, Court analyzes whether likely targets of investigation will be
those who bear greatest responsibility for crimes committed and whether specific crimes
committed in situation will be of sufficient gravity). But see David Luban, A Theory of
Crimes Against Humanity, 29 YALE J. INT'L L. 85, 108 (2004) ("Any body-count
requirement threatens to debase the idea of international human rights. ); Richard
...
Vernon, What is Crime Against Humanity?, 10 J. POL. PHIL. 231, 246 (2002) (arguing that
the number of victims beyond a minimal and variable threshold has"no weight at all").
66. Draft Policy Paper on Preliminary Examinations, supra note 65, 1170.
A. Evidence of Expansion
i. Broadening Harms
The most dramatic judicial broadening of the harms subject to

international adjudication was the ICTY's decision to extend individ-
ual criminal responsibility to war crimes committed in internal armed
conflicts. 67 Until that decision, the prevailing view was that interna-
tional law extended individual liability only to crimes committed in
international armed conflicts. 68 This judicial act significantly trans-
formed international criminal law, helping to ensure the inclusion in
the Rome Statute of war crimes committed in non-international
69
armed conflicts.
The ICTY judges used gravity rhetoric to justify this expan-
sion, stating: "No one can doubt the gravity of the acts at issue, nor
' 70
the interest of the international community in their prohibition."
The extension of international criminal law to non-international
armed conflict does not necessarily represent a diminution in gravity.
War crimes committed in internal armed conflict arguably can be just
as serious as those committed in international armed conflict. None-
theless, this lateral expansion-the extension of international juris-
diction to more kinds of crimes-increased the potential for less seri-
ous crimes to be adjudicated in international courts. By eliminating
the requirement of cross-border harm, it became more difficult to de-
termine what conflicts are sufficiently serious to be termed "armed
conflict" at all. 7 1 Armed conflict for purposes of international crimi-
67. Prosecutor v. Tadic, Case No. IT-94-1, Decision on Defence Motion for
Interlocutory Appeal on Jurisdiction, 11 128-37 (Int'l Crim. Trib. for the Former Yugoslavia
Oct. 2, 1995) [hereinafter Tadic Decision].
68. See Theodor Meron, International CriminalizationofInternal Atrocities, 89 AM. J.
INT'L L. 554, 559 (1995) (noting that until the mid-1990s, it was generally accepted that
customary international law applicable to non-international conflicts did not include war
crimes); Kenneth W. Abbott, InternationalRelations Theory, International Law, and the
Regime Governing Atrocities in Internal Conflicts, 93 AM. J. INT'L L. 361, 378 (1999) ("The
ICTY appellate chamber decision in Tadic, for example, expanded its own jurisdiction and
that of other tribunals by enunciating a customary law of war crimes in internal conflicts.").
69. See Allison Marston Danner, When Courts Make Lawi: How the International
Criminal Tribunals Recast the Laws of War, 59 VAND. L. REV. 1, 35 36 (2006) (discussing
influence Tadic decision had on drafters of Rome Statute, especially in context of war
crimes, noting "the Rome Statute adopts the definition of 'armed conflict' articulated by the
Appeals Chamber in Tadic" which included non-international civil war).
70. Tadic Decision, supra note 67, 129.
71. See, e.g., Prosecutor v. Boskoski & Tarculovski, Case No. IT-04-82-T, Judgment
nal law was no longer limited to conflict between national forces but
now had to be distinguished from "banditry, unorganized and short-
lived insurrections, or terrorist activities, which are not subject to in-
ternational humanitarian law."' 72 Reasoning that international hu-
manitarian law should apply as broadly as possible, judges have tak-
en a fairly expansive approach to that distinction, thereby effectively
diminishing the gravity required for international adjudication of war
crimes. 73
Courts have also taken an expansive view of what constitutes
a crime against humanity. In particular, judges have interpreted
broadly the requirement that the crimes be part of a widespread or
systematic attack. Crimes have been found to be "widespread"
when they covered geographic areas as small as twenty kilometers,
two communes and a single prison camp. 74 Former ICTY judge Pa-
tricia Wald has noted that "[i]n practice ... the 'systematic or wide-
spread' chapeau of crimes against humanity presents no great obsta-
cle to prosecution," 75 and Payam Akhavan has written that "[r]ecent
[ICTY] decisions reveal a temptation to dilute the laws of war in or-
der to criminalize civilian suffering by invoking the broader concept
of crimes against humanity." ' 76 Akhavan cites the expansive ICTY
interpretation of the crime against humanity of deportation, which he
argues criminalizes combat. According to the ICTY reading of the
crime, even a lawful attack could result in criminal liability if the
(Int'l Crim. Trib. for the Former Yugoslavia July 10, 2008).
72. Id. at 175 (quoting Prosecutor v. Tadic, Case No. IT-94-l-T, Judgment, 562
(Int'l Crim. Trib. For the Former Yugoslavia May 7, 1997)).
73. See, e.g., Boskoski & Tarculovski, Case No. IT-04-82-T, 197, 239, 292 (stating
that Common Article 3 reflects basic humanitarian protections such that a party to an armed
conflict "only needs a minimal degree of organization to ensure their application" and
finding that armed conflict existed despite low number of casualties and limited organization
of one party); Prosecutor v. Gotovina, Case No. IT-06-90-PT, Trial Chamber, Decision on
Several Motions Challenging Jurisdiction, 31 (Int'l Crim. Trib. for the Former Yugoslavia
Mar. 19, 2007) ("Moreover, the 'in armed conflict' requirement has been interpreted broadly
in the jurisprudence of the Tribunal. While requiring, for the purposes of Article 5, the
existence of an armed conflict at the time and place relevant to the indictment, the
jurisprudence does not require a 'material nexus' between the armed conflict and the acts of
the accused.").
74. Patricia Wald, Genocide and Crimes against Humanity, 6 WASH. U. GLOBAL STUD.
L. REV. 621, 629 (2007) (citing GERHARD WERLE, PRINCIPLES OF INTERNATIONAL CRIMINAL
LAW at 654-657 (2005)).
75. Id. at 630.
76. Payam Akhavan, Reconciling Crimes Against Humanity with the Laws of War:
Human Rights, Armed Conflict, and the Limits of Progressive Jurisprudence, 6 J. INT'L
CRIM. JUST. 21, 22 (2008).
combatant should have foreseen that the attack would cause civilians
to flee. 77 William Schabas has even suggested that according to the
ICTY's approach the crimes committed during the London riots 7of8
August 2011 would meet the definition of crimes against humanity.
The ICTR and ICTY have also taken a broad approach to in-
terpreting the catchall crimes of "other inhumane acts" and the crime
of persecution. For example, the ICTR has controversially ruled that 79
hate speech can constitute persecution as a crime against humanity.
All of these developments at least arguably reduce the gravity re-
quired for crimes against humanity.
Although the ICC's jurisprudence is limited, early indications
suggest that ICC judges may hew to the expansionist example set by
the other tribunals. For example, in its first effort to interpret the
Rome Statute's requirement that crimes against humanity be commit-
ted pursuant to a state or organizational policy, the court held that
groups of loosely coordinated political leaders and businessmen qual-
ified as "organizations." 80 One judge, however, took the view that
organizations must be "state-like" to fulfill the contextual require-
ment for crimes against humanity. 81 Claus Kress writes that the deci-
sion "follows a tendency in the more recent international case law to
downplay the significance of the contextual requirement of crimes
against humanity." 82 Interestingly, not only have the ICC judges
taken an expansive view of the organizational policy requirement, but
the judges of other tribunals have refused to adopt the requirement at
all, even after it was enshrined in the Rome Statute. 83
77. Id. at 22 23.

78. William Schabas, London Riots: Were They Crimes Against Humanity?, PH.D.
STUDIES IN HUMAN RIGHTS (Aug. 15, 2011, 6:43 AM), http://humanrightsdoctorate.
blogspot.com/2011/08/london-riots-were-they-crimes-against.html.
79. Prosecutor v. Nahimana, Case No. ICTR 99-52-T, Judgment, ]1072 (May 12,
2003); Bikindi v. Prosecutor, Case No. ICTR 01-72-AT, Judgment, 388-95 (Dec. 2, 2008).
80. Situation in the Republic of Kenya, Case No. ICC-01/09, Decision Pursuant to
Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in
the Republic of Kenya (Mar. 31, 2010).
81. Id., Dissenting Opinion of Judge Hans-Peter Kaul, l 51-53.
82. Claus Kress, On the Outer Limits of Crimes Against Humanity: The Concept of
Organization within the Policy Requirement: Some Reflections on the March 2010 ]CC
Kenya Decision, 23 LEIDEN J. INT'L L. 855, 855-7 (2010) (asserting ICC in Kenya applied
expansive reading of "organization" because it was clear alleged "groups" lacked anything
close to state-like level of organization).
83. See, e.g., ICTY Statute, supra note 14, art. 5 (not requiring organizational policy
element for crimes against humanity); see also Prosecutor v. Kunarac, Case No. IT-96-23/1-
A, Appeals Chamber Judgment, 98 (Int'l Crim. Trib. for the Former Yugoslavia June 12,
Even the definition of genocide, the crime spawned by the

Holocaust, has been broadly interpreted in some respects. In the Jeli-
sic case, the ICTY Appeals Chamber judges held that no plan or pol-
icy to commit widespread or systematic crimes is required for a gen-
84
ocide conviction-a lone madman can be convicted of genocide.
This expansive view of the crime led the ICTY to conclude contro-
versially that genocide was committed in the city of Srebrenica even
though there was little evidence of a plan or policy to destroy a group
85
in whole or in part.
In holding the Srebrenica massacre to be genocide, the ICTY
judges appear to have expanded the meaning of genocide in another
way as well: they seem to contemplate that genocide can be commit-
ted through "the partial destruction of a relatively small communi-
ty." ' 86 The ICTY's approach to genocide seems to have been influ-
enced by the gravity of the crimes committed at Srebrenica, which
the judges describe as an "unspeakable human evil." 87 In another
judgment, the ICTY further expanded the scope of genocide by hold-
ing that it can be committed when there is only forcible transfer of a
population, rather than its physical destruction. 88
2002) (sustaining convictions of defendants convicted of crimes against humanity for

repeatedly raping women even though there was no evidence of state plan or policy behind
the acts, stating "neither the attack nor the acts of the accused needs to be supported by any
form of 'policy' or 'plan"'); Schabas, supra note 32, at 960 (discussing the Kunarac
Judgment and its elimination of plan or policy element).
84. Prosecutor v. Jelisic, Case No. IT-95-10-A, Judgment, 148 (Int'l Crim. Trib. for
the Former Yugoslavia July 5, 2001). For critical discussion see Schabas, supra note 32.
85. See Schabas, supra note 32, at 957-58 (citing and discussing Prosecutor v. Krstic,
Case No. IT-98-33-T, Judgment (Int'l Crim. Trib. for the Former Yugoslavia Aug. 2, 2001);
Prosecutor v. Krstic, Case No. IT-98-33-A, Judgment (Int'l Crim. Trib. For the Former
Yugoslavia Apr. 19, 2004); Prosecutor v. Blagojevic, Case No. IT-02-60-T, Judgment (Int'l
Crim. Trib. for the Former Yugoslavia Jan. 17, 2005); and Prosecutor v. Blagojevic, Case
No. IT-02-60-A, Judgment (Int'l Crim. Trib. for the Former Yugoslavia May 9, 2007)). In
his discussion, Schabas notes that the ICTY concluded that the massacre at Srebrenica was
part of a "plan" formulated by a State or quasi-state entity. Id. However, Schabas goes on
to note that the evidence actually presented in the Srebrenica cases failed to establish
anything approaching a state plan or policy; instead, the evidence showed that the execution
plan was a last-minute, hastily organized action, created and implemented by a single
general and his closest cohorts. Id. at 958.
86. William A. Schabas, Genocide, Crimes Against Humanity, and Dar/uir: The
Commission ofInquiiy's Findings on Genocide, 27 CARDOZO L. REV. 1703, 1707 (2006)
(discussing effect ICTY's decisions regarding Srebrenica massacre had on law of genocide).
87. Prosecutor v. Krstic, Case No. IT-98-33-T, Judgment, 70 (Int'l Crim. Trib. for
the Former Yugoslavia Aug. 2, 2001).
88. Prosecutor v. Blagojevic, Case No. IT-02-60-T, Judgment, 665 66 (Int'l Crim.
Although the ICC judges have yet to rule on the meaning of

genocide, some have criticized their decision to allow genocide
charges against Sudanese president Al Bashir as contemplating a low
evidentiary threshold for the specific intent requirement of the
crime. 89 These developments at the ICTY and ICC evidence a ten-
dency to include within the definition of genocide crimes that are less
serious than the crimes previously given that label.
The contours of international criminal law's subject matter
have also been developing through the actions of the ICC prosecutor.
Luis Moreno-Ocampo, the Court's first prosecutor, took a generally
broad view of the types of situations that the Court can investigate
and prosecute. In so doing, he extended the ICC's reach beyond situ-
ations like those that formed the backdrop for the Court's creation:
the Holocaust, the Rwandan genocide and the conflict in former Yu-
goslavia.
Moreno-Ocampo declined to act on the basis of insufficient
gravity in only one situation: the war crimes of British soldiers in
Iraq. 90 In all others, the prosecutor either opened an investigation or
left unresolved the question of exercising jurisdiction either by letting
the matter simmer at the "preliminary examination" stage or remain-
ing silent. Moreover, the Office of the Prosecutor has articulated a
policy of opening a "preliminary examination" of any situation
brought to its attention by any source. 91
Of the fourteen situations the Prosecutor's office is currently
prosecuting, investigating or examining, 92 several involve a much
Trib. for the Former Yugoslavia Jan. 17, 2005).

89. See Andrew T. Cayley, The Prosecutor's Strategy in Seeking the Arrest of
President Al Bashir on Charges of Genocide, 6 J. INT'L CRIM. JUST. 829, 831, 839 (2009)
(noting that the International Commission of Inquiry on Darfur (UNCOI) had found that
three alleged target "tribes" were not distinct ethnic groups and UNCOI determined that
attacks against civilian populations were part of a counter-insurgency campaign and not
reflective of genocidal intent).
90. ICC-OTP, Luis Moreno-Ocampo, Letter Concerning Situation in Iraq (Feb. 9,
2006), available at http://www.icc-cpi.int/NR/rdonlyres/04D143C8-19FB-466C-AB77-
4CDB2FDEBEF7/143682/OTP letter to senders-re-Iraq_9_February_2006.pdf. Ocampo
has also indicated the reason he prioritized the crimes of the LRA over those of the
government forces in Uganda was that the former were more serious. Statement by Luis
Moreno-Ocampo, Prosecutor of the International Criminal Court, Informal meeting of Legal
Advisors of Ministries of Foreign Affairs, INTERNATIONAL CRIMINAL COURT, 7 (Oct. 24,
2005), http://212.159.242.181/iccdocs/asp-docs/library/organs/otp/speeches/LMO_2005102
4_English.pdf.
91. Draft Policy Paper on Preliminary Examinations, supra note 65, at 5.
92. Though the ICC-OTP's website does describe preliminary examination of
more limited scope of harm than that addressed by prior international

tribunals. One situation in South Korea concerns the shelling of an
island that resulted in the death of four people 93 and the sinking of a
warship that killed forty-six. 94 Another situation pertains to a coup
d'etat in Honduras that caused six deaths and two instances of sexual
violence. 95 The situation in Guinea involved dozens of rapes and be-
tween 150 and 200 killed. 96 Given that these situations remain at the
preliminary examination stage, the prosecutor may yet conclude that
they are not sufficiently serious to warrant ICC prosecution. None-
theless, the fact that the prosecutor considers these situations poten-
tial candidates for international adjudication indicates an expansive
approach to the exercise of international jurisdiction. Moreover, in
two of the situations where the Court has opened an investigation-
Libya and Kenya-the numbers of people directly harmed are also
significantly lower than in situations that had previously been
deemed legitimate subjects of international criminal adjudication. 97
seventeen situations, that number includes those that have led to the opening of
investigations (Uganda, DRC, CAR, Darfur, Kenya, Cote d'Ivoire and Libya), and those
dismissed (Venezuela, Iraq and Palestine). See OTP-ICC, Communications, Rejerrals and
Preliminary Examinations, INTERNATIONAL CRIMINAL COURT (last visited Sept. 6, 2012),
available at http://www.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Office+of+the+
Prosecutor/Comm+and+Ref/.
93. See Press Release, ICC-OTP, ICC Prosecutor: Alleged War Crimes in the
Territory of the Republic of Korea under Preliminary Examination (Dec. 6, 2010), available
at http://www.icc-cpi.int/menus/icc/press / 20and /"20media/press / 20releases/press /"20rele
ases%20(2010)/pr608 (describing investigation for shelling of Yeonpyeong); see also Seo
Yoonjung & Keith B. Richburg, 2 Civilians Killed in North Korean Artillery Attack, WASH.
POST, Nov. 24, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/ 11/23/
AR2010112300880.html (describing number of victims in Yeonpyeong shelling).
94. ICC-OTP, supra note 93.
95. Human Rights Watch, After the Coup: Ongoing Violence, Intimidation, and
Impunity in Honduras, HUMAN RIGHTS WATCH, 12, 15 (2010), available at
http://www.hrw.org/sites/default/files/reports/hondurasl21 OwebwcoverO.pdf (describing
numbers of victims).
96. See ICC-OTP, ]CC Prosecutor Confirms Situation in Guinea under Examination
(Oct. 14 2009), INTERNATIONAL CRIMINAL COURT, http://www.icc-cpi.int/menus/icc/
structure%20ogo20the%o20court/office%20oPo20the%20prosecutor/comm%20and%2ref/g
uinea/icc%20prosecutor%o20confinnsYo20situation%20in% o20guineaYo20under%20examinat
ion ("[W]omen were abused or otherwise brutalized on the pitch of Conakry's stadium,
apparently by men in uniform."); see also Human Rights Watch, Bloody Monday: The
September 28 Massacre and Rapes by Security Forces in Guinea, HUMAN RIGHTS WATCH, 4
(2009), available at http://www.hrw.org/sites/default/files/reports/guineal209web-O.pdf
(describing number of victims).
97. Compare Kress, supra note 82, at 856 (describing violence in Kenya as resulting in
over 1,000 killings, almost 1,000 rapes and between 3,000 and 4,000 acts of serious injury),
Finally, as already mentioned, the U.N. Security Council cre-

ated the Lebanon Tribunal to adjudicate the killing of essentially one
person. 98 While the number of victims is but one indicator of gravi-
ty, neither the prosecutor nor anyone else has attempted to argue that
these situations are as serious as their predecessors by, for example,
referencing other potential indicators of gravity such as the broader
impact of the crimes beyond the immediate victims.
ii. Decreasing Culpability
International criminal courts have also adopted expansive ap-

proaches to grounds of liability. Two doctrines have been particular-
ly controversial: joint criminal enterprise (JCE) and superior respon-
sibility. In the Tadic case, the ICTY Appeals Chamber declared that
liability for international crimes can be based on participation with
others in a common criminal purpose. 99 The idea of such common
purpose liability is not in itself remarkable since it is found in many
criminal justice systems, but the ICTY judges went further, asserting
that common purpose liability extends to the foreseeable crimes of
co-conspirators-the so-called "extended" form of JCE or JCE
Three. 100
and Decision on the "Prosecutor's Application Pursuant to Article 58 as to Muammar

Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah A1-Senussi,"
Situation in the Libyan Arab Jamahiriya, Case No. ICC-01/I 1, 34 (June 27, 2011) (stating
that although precise figures were unavailable, it was believed that in the first two weeks of
February, hundreds of civilians were killed, hundreds more were injured and hundreds more
were arrested by Libyan Security Forces), with Press Release, ICC-OTP, The Office of the
Prosecutor of the International Criminal Court Opens Its First Investigation (June 23, 2004),
available at http://www.icc-cpi.int/menus/icc/press /20and /20media/press%/20releases/
2004/the%20office%20oPfo20the% o20prosecutoro20oPf o20the%20international%o20criminal
o20court%20opens%20its%20first%20investigation?lan=en-GB (stating that "[m]illions of
civilians have died" from conflict in Democratic Republic of Congo) and U.N. Dep. Of Pub.
Info., The United Nations and DarturFact Sheet, U.N. INFORMATION SERVICE (Aug. 2007),
available at http://www.unis.unvienna.org/pdf/UN-Darfur fact sheet.pdf (estimating over
200,000 people died as a result of fighting in Darfur and at least two million were
displaced).
98. S.C. Res. 1757, Annex, U.N. Doc. S/RES/1757 (May 30, 2007) (establishing "a
tribunal of an international character to try all those who are found responsible for the
terrorist crime which killed the former Lebanese Prime Minister Rafiq Hariri and others").
99. Prosecutor v. Tadic, Case No. IT-94-1-A, Judgment (Int'l Crim. Trib. for the
Former Yugoslavia July 15, 1999); Allison M. Danner & Jenny S. Martinez, Guilty
Associations: Joint CriminalEnterprise, Command Responsibility, and the Development of
International CriminalLaw, 93 CAL. L. REV. 75, 103 110 (2005).
100. Prosecutor v. Tadic, Case No. IT-94-1-A, Judgment, 204, 228 (Int'l Crim. Trib.
This mode of liability, although permitted in some national

systems,' 0 ' has been widely criticized as departing from well-
accepted principles of culpability. 102 Under JCE Three, a defendant
who shared in a criminal purpose can be convicted of a vast number
of crimes flowing from that purpose even if the defendant was com-
pletely unaware of the crimes themselves. Additionally, the common
criminal purpose is often defined in very general terms, 10 3 which
means that a defendant can be convicted of a crime requiring a high
level of culpability such as genocide without possessing the required
specific intent. 104
Indeed, the doctrine has the effect of lowering the mens rea
for many international crimes to recklessness or, in some situations,
negligence. 105 In adopting this doctrine, the ICTY judges appealed to
the gravity of the crimes within their mandate. They reasoned that
the ICTY statute aimed to bring to justice "all those who have en-
gaged in serious violations of international humanitarian law, what-
ever the manner in which they may have perpetrated, or participated
106
in the perpetration of those violations."
Although JCE originated with the ICTY, it is now widely ap-
plied by international courts and a related doctrine is available to the
ICC. 107 In fact, a growing number of international criminal convic-
For the Former Yugoslavia July 15, 1999).

101. Danner & Martinez, supra note 99, at 109; Pinkerton v. United States, 328 U.S.
640 (1946) (permitting attribution of liability for one conspirator's criminal acts to all
members of a consipiracy).
102. Darryl Robinson, The Identity Crisis of InternationalCriminal Law4, 21 LEIDEN J.
INT'L L. 925, 939 (2008).
103. See Danner & Martinez, supra note 99, at 107-09 (describing expansive definition
often given to JCE by prosecutors and courts).
104. Robinson, supra note 102, at 941.
105. Turner, supra note 64, at 561.
106. Prosecutor v. Tadic, Case No. IT-94-1-A, Judgment, 11 189-190 (Int'l Crim. Trib.
For the Former Yugoslavia July 15, 1999). See also Danner & Martinez, supra note 99, at
132 (noting that the Appeals Chamber essentially determined that punishment should extend
to all those who have "perpetrated especially serious violations of victims' human rights,
since all of the crimes within international criminal law constitute serious violations of
international human rights law").
107. Prosecutor v. Karemera, Case No. ICTR-98-44-1, Amended Indictment (Aug. 24,
2005); Prosecutor v. Taylor, Case No. SCSL-2003-01, Indictment, 23 25 (Mar. 7, 2003);
Danner & Martinez, supra note 99, at 156 (describing use of "common purpose language"
in East Timor indictments). The Extraordinary Chambers in the Courts of Cambodia
recently rejected the doctrine on the grounds that it was not part of customary international
law at the time the Khmer Rouge crimes were committed. See Decision on the Appeals
tions rely on this theory of liability. 108 In a particularly controversial

decision, the Special Court for Sierra Leone convicted defendants
based on a JCE theory even though the common purpose was not
criminal. 109 The judges held that it was sufficient that the defendants
contemplated committing crimes as a means of obtaining the legal
objective of regime change. 110 Defendants convicted under such the-
ories of liability are almost certainly less culpable than the typical in-
ternational defendant who has perpetrated or ordered the commission
of crimes.
Another controversial form of liability that international
courts apply permits conviction of superiors who knew or should
have known their subordinates had committed or were committing
crimes and failed to prevent the crimes or punish the perpetrators.111
The superiors are thus held liable for crimes in which they took no
Against the Co-Investigative Judges Order on Joint Criminal Enterprise (JCE), Case File No:
002/19-09-2007-ECCC-OCIJ, Pre-Trial Chamber (May 20, 2010). The ICC has applied a
theory of indirect co-perpetration pursuant to Article 25(3)(a) of the Rome Statute.
Prosecutor v. Thomas Lubanga, Case No. ICC-01 /04-01/06, Judgment Pursuant to Article 74
of the Statute (Mar. 14, 2012); Prosecutor v. Thomas Lubanga, Case No. ICC-01/04-01/06-
803-tEN, Decision on the Confir-ation of Charges (Jan. 29, 2007). This mode of liability
requires the existence of an agreement or common plan between two or more persons that, if
implemented "will result in the commission of the relevant crime in the ordinary course of
events" and an essential contribution to the common plan by the accused that resulted in the
commission of the relevant crime. Prosecutor v. Thomas Lubanga, Case No. ICC-01/04-
01/06, Judgment Pursuant to Article 74 of the Statute, 976 1018 (Mar. 14, 2012).
Additionally, the accused must be aware that by implementing the common plan, the
criminal consequences "will occur in the ordinary course of events" and that he provided an
essential contribution to the implementation of the common plan. Id. 11 1013, 1018.
108. See Danner & Martinez, supra note 99, at 107 08; Turner, supra note 64, at 561
(noting 64% of ICTY indictments filed between June 15, 2001 and January 1, 2004
explicitly relied on JCE and 81% relied on it implicitly). Turner went on to note that as of
December 2007, 48% of all ICTY indictments explicitly relied on JCE. Id. At the ICTR, as
of December 2007, though only thirteen out of eighty-five indictments were grounded in
JCE, fifty-five of these indictments (65%) included a conspiracy count. Id. at 561 62.
109. Prosecutor v. Brima, Kamara & Kanu, Case No. SCSL-2004-16-A, Appeals
Chamber, Judgment, 80-82 (Feb. 22, 2008). Commentators have criticized the SCSL for
extending the doctrine this far. See Wayne Jordash & Penelope Van Tuyl, Failure to Carry
the Burden of Proofi How Joint Criminal Enterprise Lost its Way at the Special Court./br
Sierra Leone, 8 J.INT'L CRIM. JUST. 591, 603 (2010).
110. Prosecutor v. Brima, Kamara & Kanu, Case No. SCSL-2004-16-A, Appeals
Chamber, Judgment, 80 (Feb. 22, 2008) (reasoning "that the requirement that the common
plan, design or purpose of a joint criminal enterprise is inherently criminal means that it
must either have as its objective a crime within the Statute, or contemplate crimes within the
Statute as the means of achieving its objective").
111. See, e.g., Rome Statute, supra note 2, art. 28.
part on the grounds that they had a duty they failed to perform. Such
liability for omissions is controversial and generally requires at least
recklessness on the part of defendants,' 12 yet some international
courts have extended the doctrine, suggesting that even negligent
failures to prevent or punish may be international crimes. 113
Some international judges have also taken an expansive ap-
proach to the actus reus element of superior responsibility. For ex-
ample, in the Oric case, an ICTY Trial Chamber interpreted the term
"committed" to allow superior liability for a subordinate's acts or
omissions that aid or abet crimes. 114 International courts have also
extended this theory beyond military superiors to civilian leaders. '15
Commentators have thus expressed concern that international courts
112. See Danner & Martinez, supra note 99, at 121 ("Liability for serious crimes based
on omissions, let alone negligent omissions, is unusual in criminal law.").
113. See Jenny S. Martinez, Understanding Mens Rea in Command Responsibility:
From Yamashita to Blaskic and Beyond, 5 J. INT'L CRIM. JUST. 638, 650-53 (2007) (citing
post-World War 1i cases in which courts appeared to establish negligent failure to obtain
knowledge as the mens rea of command responsibility). For example, in the Tokyo War
Crimes Trial, in which twenty-eight Japanese military and civilian officials were tried, the
International Military Tribunal for the Far East held that liability for command responsibility
would attach if a superior either "had knowledge that such crimes were being committed,
and having such knowledge [he] failed to take such steps as were within [his] power to
prevent the commission of such crimes in the future," or "should, but for negligence or
supineness, have had such knowledge .... " Id. at 652 (citing 20 THE TOKYO WAR CRIMES
TRIAL, THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST, Judgment, Official
Transcript, Annex A-6, 444-48 (1981)) (emphasis added). The ICC statute also contains
language indicating negligence may suffice. Rome Statute, supra note 2, art. 28 (imposing
criminal responsibility upon a military commander where the commander "either knew or,
owing to the circumstances at the time, should have known" that forces under his command
and control were committing, or were about to commit, crimes within the ICC's
jurisdiction).
114. Prosecutor v. Oric, Case No. IT-03-68-T, Judgment, 11 300-01 (Int'l Crim. Trib.
For the Former Yugoslavia June 30, 2006); Darryl Robinson, The Two Liberalisms of
International Criminal Law, in FUTURE PERSPECTIVES ON INTERNATIONAL CRIMINAL JUSTICE
115, 140 n.154 (Carsten Stahn & Larissa van den Herik eds., 2010). See Kai Ambos, Joint
Criminal Enterprise and Command Responsibility, 5 J. INT'L CRIM. JUST. 159, 178 (2007)
(criticizing the Oric Trial Chamber's "extensive interpretation" of the term "committed"
and claiming such an interpretation conflicts with the principle of legality).
115. E.g., Prosecutor v. Musema, Case No. ICTR-96-13-T-A, Judgment and Sentence,
1111127-48, 864, 866 (Jan. 27, 2000); Prosecutor v. Kayishema & Ruzindana, Case No. ICTR
95-1-T, Judgment, 11 213-16 (May 21, 1999); Prosecutor v. Delalic (Celebici), Case No. IT-
96-21-A, Judgment, 195 96, 240 (Int'l Crim. Trib. For the Former Yugoslavia Feb. 20,
2001); Prosecutor v. Aleksovski, Case No. IT-95-14/1-T, Judgment, 75 (Int'l Crim. Trib.
For the Former Yugoslavia June 25, 1999); Prosecutor v. Delalic (Celebici), Case No. IT-96-
21-T, Judgment, 11356-63 (Int'l Crim. Trib. For the Former Yugoslavia Nov. 16, 1998).
may be basing convictions for crimes that are considered especially

heinous on the lowest form of culpability.' 16 Such convictions reflect
a dilution of the culpability aspect of gravity.
In sum, there is ample evidence that international criminal
law has expanded since its inception, largely in a direction of dimin-
ished gravity, however that concept is understood. Ironically, due to
its malleability, the concept of gravity has often been employed to
justify the very doctrines that tend to dilute the gravity of internation-
al crimes.
B. PredictingContinuedExpansion
Many of the judicial developments discussed above reflect the

work of the ICTY and, to a lesser extent, the ICTR. Indeed, the
ICTY claims as one of its accomplishments that it has "expanded the
boundaries of international humanitarian and international criminal
law." 117 Now that the ad hoc tribunals are completing their work
one might be tempted to conclude that such expansion will diminish
or even stop. But there are reasons to predict continued growth: spe-
cifically, the broad goals international criminal courts seek to pursue
and the professional and institutional incentives operating at such
courts. Unless political actors curtail expansion by, for example, im-
posing a narrow definition of the gravity required for international
adjudication, these forces are likely to continue to push international
courts to adjudicate less and less serious violations.
i. The Broad Goals of International Criminal Courts
The broad goals that international criminal courts pursue fos-

ter the expansion of their mandates. The ICC, for example, is said to
be an instrument of deterrence and prevention, peace and reconcilia-
tion, retribution, and restorative justice. 118 Deterrence or, more
broadly, prevention is usually cited as the principal goal of the
116. See, e.g., Ambos, supra note 114, at 176; Martinez, supra note 113, at 642.
117. About the ICTY Achievements, INTERNATIONAL CRIMINAL TRIBUNAL FOR THE
FORMER YUGOSLAVIA, http://www.icty.org/sid/324 (last visited Sept. 11, 2012).
118. See, e.g., Jenia Iontcheva Turner, Legal Ethics in International CriminalDefense,
10 CHI. J. INT'L L. 685, 691 n.15 (2010); Ralph Henham, The PhilosophicalFoundations of
International Sentencing, I J. INT'L CRIM. JUST. 64, 74, 80 81 (2003); Jean Galbraith, The
Pace of International Criminal Justice, 31 MICH. J. INT'L L. 79 (2009); Linda M. Keller,
Achieving Peace with Justice: The International Criminal Court and Ugandan Alternative
Justice Mechanisms, 23 CONN. J. INT'L L. 209, 265 (2008).
Court. 119 But what is the Court supposed to try to prevent? Certainly
it is intended to prevent crimes as serious as the atrocities that moti-
vated its creation-the Holocaust, the Rwandan genocide and ethnic
cleansing in the former Yugoslavia in particular.
But why stop there? If international prosecution can prevent
even a small number of killings, why not include such killings in its
jurisdiction? Without a clear conceptual or doctrinal limitation,
whether in the form of gravity or otherwise, the goal of preventing
crimes pushes in favor of expansion. International courts can, for ex-
ample, deter more crimes by interpreting expansively the require-
ments of "armed conflict" for war crimes and the "widespread or
systematic" elements of crimes against humanity.
Likewise, if international prosecutions can serve to promote
peace and to reconcile communities, it makes sense to stretch doc-
trines to include any prosecutions necessary to accomplish these
goals. For example, since many people believe reconciliation re-
quires prosecuting both sides of a conflict even when one side has
committed significantly less serious crimes, 12 0 a court may be tempt-
ed to interpret its jurisdiction broadly to reach the lesser crimes.
Finally, restorative justice goals mitigate in favor of prosecut-
ing a wide range of crimes emerging out of a conflict, no matter how
serious. Through exemplary prosecutions of the various types of
crimes committed, such courts can attempt to restore large numbers
of victims despite the inability of such courts to prosecute large num-
bers of perpetrators. 121
Moreover, the ICC does not merely seek to accomplish these
goals directly but also indirectly by stimulating national prosecutions.
Moreno-Ocampo has interpreted his mandate to include so-called
"positive complementarity": taking proactive steps to encourage na-
119. ERROL P. MENDES, PEACE AND JUSTICE AT THE INTERNATIONAL CRIMINAL COURT:
A COURT OF LAST RESORT 143 (2010) (noting that the Rome Statute's preamble is often
"interpreted as meaning that deterrence as a fundamental principle of international criminal
justice is a goal of the ICC"); Mirjan Damagka, What is the Point of InternationalCriminal
Justice?, 83 CHI.-KENT L. REV. 329, 344 (2008) (noting that deterrence has been accorded
"pride of place" among the objectives of international criminal courts).
120. See, e.g., AMNESTY INTERNATIONAL, INTERNATIONAL CRIMINAL TRIBUNAL FOR
RWANDA: TRIALS AND TRIBULATIONS 16 (1998) ("True reconciliation in Rwanda must
involve showing that the rule of law does not discriminate for or against anyone. The
Tribunal's work should contribute to this process [by also prosecuting Rwandan Patriotic
Front abuses]."), available at http://www.amnesty.org/en/library/asset/lOR40/003/1998/en/
83bb5cf5-e81 e- 11 dd-9deb-2b812946e43c/ior400031998en.html.
121. Turner, supra note 64. See Damaska, supra note 119, at 332 ("It is believed that
retribution exacted from a few individuals will promote group reconciliation.").
tional courts to prosecute. 122 This vision of the ICC's complementa-

rity function also encourages a broad view of its jurisdiction since the
obligation of national governments to prosecute is not restricted to
war crimes, crimes against humanity and genocide. Instead, human
rights law increasingly mandates that national courts prosecute all se-
rious violations of human rights. The Inter-American Court of Hu-
man Rights has held that states must investigate and prosecute seri-
ous human rights violations such as killings and forced
disappearances. 123 That court has even gone so far as to order states
to take particular steps to fulfill this obligation. 124 The European
human rights system, though more deferential to national govern-
ments in terms of compliance, has also seen an increase in efforts to
ensure national prosecutions of human rights violations. 125 Positive
complementarity therefore suggests that the ICC should interpret its
jurisdiction broadly to encourage national prosecutions of as many
crimes as possible.
ii. Identities and Incentives of International Judges and Prosecutors
Additional reasons to predict the continued expansion of in-

ternational criminal law include the identities and incentives of its
primary actors. Many judges and prosecutors at international courts
view themselves as functionaries of the broader human rights move-
ment. Indeed, experience in human rights law is an important quali-
122. See generally ICC, Office of the Prosecutor, Paper on Some Policy Issues bebre
the Office qf the Prosecutor (2003), INTERNATIONAL CRIMINAL COURT, http://www.icc-
cpi.int/NR/rdonlyres/I FA7C4C6-DE5F-42B7-8B25-60AA962ED8B6/143594/030905_Poli
cyPaper.pdf.
123. See Velisquez-Rodriguez v. Hond., Reparations and Costs, Inter-Am. Ct. H.R.
(ser. C) No. 7, 8 (July 21, 1989) (ordering, upon request of wife of victim, that
Government of Honduras "carry out an exhaustive investigation of the circumstances of the
disappearance of Manfredo Velasquez and bring charges against anyone responsible for his
disappearance"); El Amparo v. Venez., Reparations and Costs, Inter-Am. Ct. H.R. (ser. C)
No. 28, 164 (Sept. 14, 1996) (unanimously deciding that Government of Venezuela must
continue investigations into deaths of several individuals allegedly killed by state police or
military personnel and punish those responsible); Fernando Felipe Basch, The Doctrine of
the Inter-American Court of Human Rights Regarding States' Duty to Punish Human Rights
Violations and Its Dangers, 23 AM. U. INT'L L. REv. 195 (2007).
124. See David C. Baluarte, Strategizing ./br Compliance: The Evolution ?f a
Supervising Compliance Phase of Inter-American Court Litigation and the Strategic
Imperative.Ibr Victims' Representatives, AM. U. INT'L L. REV. 263 (2012).
125. Alexandra Huneeus, International Criminal Law by Other Means: The Quasi-
Criminal Jurisdictionof the Human Rights Courts, 107 AM. J. INT'L L (forthcoming 2013)
(draft on file with author).
fication for these jobs. 126 This is not surprising since international
criminal law grew out of the human rights movement.
As Darryl Robinson has persuasively argued, the human
rights-promoting identities of the regime's actors have fostered an
expansionist approach to international criminal law. 12 7 Indeed, he
points out that the human rights agenda not only helps to explain why
international criminal law shows expansive tendencies, it provides a
means for such expansion.' 28 Judges justify expansive doctrines
through interpretive approaches borrowed from the human rights
context and conflate human rights norms with international criminal
12 9
law norms.
International prosecutors and judges are also connected to
human rights advocacy networks that influence their work. 130 Such
networks often push strongly for expansion. For example, activists
and politicians have labeled a variety of activities "crimes against
humanity," including the failure to reduce greenhouse gas emissions
and the production of biofuel. 131 Others have advocated for expan-
126. See Rome Statute, supra note 2, art. 36(3)(b)(ii); Allison Danner & Erik Voeten,
Who is Running the InternationalCriminal Justice System?, in WHO GOVERNS THE GLOBE?
37 (Deborah D. Avant, Martha Finnemore & Susan K. Sell, eds., 2010) ("[F]t appears that
governments have arrived at a common understanding of what the background for an
international criminal judge should be: a national-level appellate judge with extensive
international human rights experience.").
127. See Robinson, supra note 102.
128. Id. at 946.
129. Id. at 946-47.
130. See Daniel Terris et al., Tovard a Community of InternationalJudges, 30 Loy.
L.A. INT'L & COMP. L. REV. 419, 460 (2008) ("For judges with a human rights background,
th[e] pressure [to convict] comes with a considerable irony. Many of them spent earlier
parts of their careers protecting the rights of de/endants in national courts, holding military
organizations, police departments and justice systems accountable for their violations of
fairness and justice. Now, as judges on international criminal courts, they can find
themselves pressured by erstwhile colleagues to give primary attention to the rights of
victims, rather than those in the dock.").
131. See, e.g., Andrew Revkin, Are Big Oil and Big Coal Climate Criminals?, N.Y.
TIMES: DOT EARTH (June 23, 2008, 7:34 PM), http://dotearth.blogs.nytimes.com/2008/06/23
/are-big-oil-and-big-coal-climate-criminals/ (quoting a prominent scientist as accusing oil
executives of committing crimes against humanity and nature for stonewalling on the
reduction of greenhouse gas emissions); see also Grant Ferrett, Biolels 'Crime Against
Humanity', BBC NEWS (Oct. 27, 2007, 6:37 GMT), http://news.bbc.co.uk/2/hi/7065061.stm
(quoting a UN special rapporteur as condemning the production of biofuels as a crime
against humanity). See generally Peter Sharp, Prospects for EnvironmentalLiability in the
InternationalCriminal Court, 18 VA. ENVTL. L.J. 217 (1999) (discussing prospects of, and
arguing for, inclusion of environmental crimes within ICC's jurisdiction as genocide, crimes
sive interpretations of crimes against humanity to include opportunis-

tic harms perpetrated by individuals, such as violence against female
forced migrants and crimes by peacekeepers. 132 Such efforts un-
doubtedly influence actors at international courts at least some of the
time. For example, Moreno-Ocampo's decision to seek a genocide
charge against President Bashir in the face of significant expert opin-
ion that the conflict in Darfur did not meet the legal requirements of
the crime 133 was likely affected by the many advocacy efforts to label
the Darfur situation "genocide." 134
In addition to their identification with the human rights
movement, international judges and prosecutors experience various
incentives to interpret their mandates broadly. First, there are emo-
against humanity, and/or war crimes); Amir Attaran, Roger Bate & Megan Kendall, Why
and Howt to Make an InternationalCrime q! Medicine Counterfeiting, 9 J. INT'L CRIM. JUST.
325, 340-44 (2011) (arguing severe pharmaceutical counterfeiting operations could
constitute crimes against humanity as defined by the Rome Statute and the ICC).
132. Jaya Ramji-Nogales, Questioning Hierarchies of Harm: Women, Forced
Migration, and International Criminal Law, 11 INT'L CRIM. L. REV. 463 (2011); see also
Melanie O'Brien, Prosecuting Peacekeepers in the ICC for Human Trafficking, I
INTERCULTURAL HUM. RTS. L. REV. 281, 283, 327 (2006) (suggesting that the commission by
peacekeepers of crimes such as trafficking, forced prostitution, rape and sexual slavery
should be prosecutable under Article 7 of the Rome Statute, but concluding that these
offenses are unlikely to fall within the ICC's subj ect-matter jurisdiction).
133. See Interview by Zachary Manfredi & Julie Veroff [ICC Observers Project] with
William A. Schabas, Professor of Human Rights Law and Director of the Irish Centre for
Human Rights, National University of Ireland, Galway (Mar. 26, 2009), available at
http:Hiccobservers.files.wordpress.com/2009/03/schabas-interview-official.pdf (stating that
the prosecutor made an "error in judgment" and should have "consigned himself to the
clearly established charges of crimes against humanity and war crimes" in indicting Bashir);
see also Int'l Commission of Inquiry on Darfur, Report of the Int'l Commission of Inquiry on
Dar/ir to the UN Secretary-General,4 (2005) (stating that the Sudanese government has not
pursued a policy of genocide because "the crucial element of genocidal intent appears to be
missing"), available at http://www.un.org/news/dh/sudan/cominq-darfur.pdf.
134. See Michael J. Kelly, The Debate Over Genocide in Dartur, Sudan, 18 U.C. DAVIS
J. INT'L L. & POL'Y 205, 213, 217 (2011) (indicating that the United States had earlier
labeled the situation a genocide and that Ocampo ultimately could not resist the pressure to
seek a charge of genocide from the court); Andrew T. Cayley, The Prosecutor's Strategy in
Seeking the Arrest of Sudanese President Al Bashir on Charges of Genocide, 6 J. INT'L
CRIM. JUST. 829, 830 (2008) (suggesting that, given the ongoing debate as to whether the
events actually amounted to genocide, it was external pressures, rather than Ocampo's own
judgment, that led to the decision to request a warrant including the charge of genocide);
Roberta Cohen, Daritr Debated, 29 FORCED MIGRATION REV. 55, 55 56 (Dec. 2007)
(discussing conviction of many NGOs that genocide was committed in Darfur and that U.S.
action was the result of pressure from NGOs, who in turn "found their voice by focusing on
genocide").
tional incentives. Faced with defendants who have killed, raped, or

tortured others and the knowledge that an acquittal means likely im-
punity judges are understandably tempted to stretch the definitions of
crimes to include the evil before them. 135 Second, international judg-
es and prosecutors experience desires for prestige, career advance-
ment 136 or even pecuniary gain 137 that may motivate them to ap-
proach their mandates liberally. Expansive jurisdiction can contri-
bute to a judge or prosecutor's sense of the importance of her work.
As one author wrote in the similar context of federal prosecutors en-
croaching on state jurisdiction: "Like Nature, the federal prosecutor
abhors a vacuum. Given a statutory grant of jurisdiction, he will seek
to bring within it any offense he finds unattended or even, in his
view, inadequately attended." 138
These incentives, along with the broad goals of international
courts, will likely continue to foster the expansion of international
criminal law, at least in the absence of firm contrary pressure.
III. THE CONSEQUENCES OF EXPANSION
To the extent commentators have remarked upon the expan-

sion of international criminal law, their reactions have tracked the
broader debates about the value of the regime. Those debates tend to
revolve around absolutes. Proponents assert that international crimi-
nal courts deter atrocities, 139 while opponents vilify them as anti-
135. Relatedly, studies indicate that the greater the harms, the stronger the pull toward
conviction. Robinson, supra note 102, at 929 (citing J.K. Robbennolt, Outcome Severity and
Judgments of "Responsibility": A Meta-Analytical Review, 30 J. APPLIED SOC. PSYCHOL.
2575 (2000); J. Lucas, C. Graif & M. Lovaglia, Misconduct in the Prosecution of Severe
Crimes: Theory and Experimental Test, 69 Soc. PSYCHOL. Q. 97 (2006)).
136. Elena Baylis, Tribunal-Hopping with the Post-Conflict Justice Junkies, 10 OR.
REV. INT'L L. 361, 373-74 (2008).
137. For example, judges on international courts make more than judges in some
European countries. William A. Schabas, Independence and Impartiality of the
International Criminal Judiciary, in FROM HUMAN RIGHTS TO INTERNATIONAL CRIMINAL
LAW: STUDIES IN HONOUR OF AN AFRICAN JURIST, THE LATE JUDGE LAITY KAMA 571, 578
(Emmanuel Decaux & Adama Dieng eds., 2007); Erik Voeten, The Politics o!international
JudicialAppointments, 9 CHI J. INT'L L. 387, 393 94 (2009).
138. Charles F.C. Ruff, FederalProsecution (ofLocalCorruption: A Case Study in the
Making ofLaw Enfbrcement Policy, 65 GEO. L.J. 1171, 1228 (1977).
139. See, e.g., Payam Akhavan, Beyond Impunity: Can International Criminal Justice
Prevent Future Atrocities?, 95 AM. J. INT'L L. 7, 11-12 (2001); M. Cherif Bassiouni,
Combating Impunity for International Crimes, 71 U. COLO. L. REv. 409, 410 (2000);
Michael P. Scharf, The Prosecutor v. Dusko Tadic: An Appraisal of the First International
democratic 140 and counter-productive. 141 The regime's expansion is

therefore cited by one side as a victory for human rights over sover-
eignty 142 and by the other as a threat to international order and de-
mocracy. 143
This Article takes a more nuanced position, arguing that the
expansion of the regime raises concerns related to both sovereignty
and defendants' rights that should worry even its most ardent sup-
porters. When international courts adjudicate marginal situations and
cases they may unjustifiably privilege the international community's
interest in accountability over states' interests in exclusive authority
and defendants' interests in fairness.
A. Expansion's Consequencesfor Sovereignty
International criminal law comes into conflict with state sov-

ereignty in several ways. First, and most importantly, it sometimes
permits criminal prosecutions despite the objection of the states
where the crimes were committed and had their most significant im-
pact. 144 Second, when such prosecutions proceed, states are some-
times required to execute arrest warrants issued by international
War Crimes Trial Since Nuremberg, 60 ALB. L. REV. 861, 868-70 (1997) (discussing
potential deterrent effect of ICTY arrests and trials).
140. See, e.g., Madeline Morris, The Democratic Dilemma of the InternationalCriminal
Court, 5 BUFF. CRIM. L. REV. 591, 596 (2002) ("What, then, about non-party states'? What is
the democratic basis for the ICC's power as applied to populations whose states have not
consented on their behalf? Here, the ICC's claim to democratic legitimacy breaks down.
There is no democratic linkage between the ICC and those non-party nationals over whom it
would exercise authority.").
141. See Julian Ku & Jide Nzelibe, Do International Criminal Tribunals Deter or
Exacerbate Human Atrocities?, 84 WASH. U. L. REV. 777, 817 831 (2006) (claiming that the
prospect of prosecution by an international court may sometimes exacerbate humanitarian
atrocities by generating local political instability).
142. Robinson, supra note 102, at 956; Robert Cryer, International Criminal Law vs.
State Sovereignty: Another Round?, 16 EUR. J. INT'L L. 979, 980 (2005) ("When
sovereignty appears in international criminal law scholarship, it commonly comes clothed in
hat and cape. A whiff of sulphur permeates the air.").
143. JESSE HELMS, EMPIRE FOR LIBERTY: A SOVEREIGN AMERICAN AND HER MORAL
MISSION 14 (2001) (warning that an International Criminal Court would be "arbitrary and
contemptuous of national judicial processes and would trample the sovereignty of
democratic nations"). But see Cryer, supra note 142, at 986-987 (arguing that while ICL's
substantive norms may chill sovereignty, they also jurisdictionally empower states).
144. See in/ra notes 152-155 and accompanying text.
courts. 145 Third, international courts do not respect the immunity of

sovereigns 146 or apply amnesties adopted under domestic law. 147 Fi-
nally, there is some authority suggesting that international courts can
exercise jurisdiction over defendants abducted from non-compliant
states under the theory of male captus bene detentus. 148 In justifying
these practices, judges and prosecutors explicitly or implicitly rely on
the gravity of the crimes at issue.
The conflict between accountability and sovereignty is most
dramatic when the ICC adjudicates a situation in the territory of an
objecting non-party state. 149 When the Court acts in a situation in-
volving an objecting state party the tension between these values is
less significant because the state relinquished some of its decision-
making authority when it joined the Court. 150 Nonetheless, even un-
der those circumstances international criminal law is privileging ac-
countability over the desires of (sometimes) democratically-elected
representatives of a political community.
Thus far, the ICC has proceeded in three situations over the
objection of the states where the crimes occurred: Kenya (a state par-
ty), Sudan and Libya (non-party states). In each case, the prosecutor
and judges invoked the gravity of the situation to justify the decisions
to proceed without engaging in substantial analysis or balancing
competing interests. 151
145. Rome Statute, supra note 2, art. 89 (state parties shall comply with ICC requests
for arrest and surrender); ICTY Statute, supra note 144, art. 29 (states shall comply with
requests for assistance issued by a trial chamber of the ICTY, including the arrest or
detention of persons); ICTR Statute, supra note 144, art. 28 (states shall comply with
requests for assistance issued by a trial chamber of the ICTR, including the arrest or
detention of persons); see also Zhu Wenqi, On Co-operation by States Not Party to the
International Criminal Court, 88 INT'L REV. RED CROSS 87, 108 (2006) (claiming that
cooperation with the ICC by both party and non-party states is now obligatory due to
customary international law).
146. ICTR Statute, supra note 14, art. 6(2); ICTY Statute, supra note 14, art. 7(2);
Rome Statute, supranote 2, art. 27.
147. See, e.g., Prosecutor v. Kallon, Case No. SCSL-04-15-AR72(E), Decision on
Challenge to Jurisdiction: Lom&Accord Amnesty, 167 (Mar. 13, 2004).
148. Under this doctrine, a defendant may be detained and tried even though the
defendant's capture was illegal. Prosecutor v. Nikolic, Decision on Interlocutory Appeal
Concerning Legality of Arrest, Case No. IT-94-2-PTAR73, 11124, 26 (Int'l Crim. Trib. for
the Former Yugoslavia June 5, 2003).
149. See Morris, supra note 1400 (explaining how ICC efforts to extend jurisdiction
over non-party states is more problematic than similar efforts for state parties).
150. Id. at 596.
151. See Situation in the Republic of Kenya, Case No. ICC-01/09, Decision Pursuant to
The determination that the Darfur situation was sufficiently

serious for international adjudication was uncontroversial given the
scope of atrocities there, which some commentators had labeled gen-
ocide. The matter was somewhat more complex for Libya where the
numbers killed were estimated to be in the hundreds, but the decision
was bolstered by Gaddafi's threats to commit additional crimes. 152
The appropriateness of international adjudication is most
questionable in the Kenya situation, which involved a relatively brief
episode of post-election violence. The numbers harmed were much
lower than in situations previously subjected to international adjudi-
cation 153 and one ICC judge concluded that the crimes were not suf-
ficiently organized to constitute crimes against humanity. 154 Moreo-
ver, the objecting government purports to be democratic and asserts
that it intends to pursue national prosecutions as soon as the relevant
institutions can be put in place. 15 5 Indeed, the government of Kenya
has established a truth commission that investigated the crimes. 156
the Republic of Kenya, 197 200 (Mar. 31, 2010) (performing brief gravity analysis that
mentioned potential involvement of high-ranking officials and "brutality" of certain acts);
Press Release, ICC-OTP, ICC Prosecutor to Judges: Kenya Crimes Resulted from a Policy
by Identifiable Leaders (Mar. 3, 2010), available at http://www.icc-cpi.int/menus/icc/press /
20and%20media/press%20releases/press%20releases%20(2010)/pr5O (prosecutor focusing
on involvement of political and business leaders in post-election crimes); Press Release,
ICC-OTP, ICC Prosecutor Presents Case Against Sudanese President, Hassan Ahmad Al
Bashir, for Genocide, Crimes Against Humanity and War Crimes in Darfur (July 14, 2008),
available at http://www.icc-cpi.int/menus/icc/press /20and /20media/press%/20releases/
press%20releases%20(2008)/a (prosecutor alleging that "Al Bashir organized the
destitution, insecurity and harassment of the survivors. He did not need bullets. He used
other weapons: rapes, hunger, and fear. As efficient, but silent.").
152. Decision on the "Prosecutor's Application Pursuant to Article 58 as to Muammar
Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi,"
Situation in the Libyan Arab Jamahiriya, Case No. ICC-01l11, 1194 (June 27, 2011)
(concluding that Gaddafi's arrest was necessary to "prevent him from continuing to use his
power and absolute control over the Libyan State apparatus to continue the commission of
crimes within the jurisdiction of the Court").
153. See supra note 97 and accompanying text (comparing the number of people
harmed in Kenya and Libya with the number of people harmed in Darfur and the DRC).
154. Situation in the Republic of Kenya, Case No. ICC-01/09, Decision Pursuant to
the Republic of Kenya, Dissenting Opinion of Judge Hans-Peter Kaul, 146 (Mar. 31,
2010).
155. Situation in the Republic of Kenya, Case No. ICC-01/09-01/I 1, Application on
Behalf of the Government of the Republic of Kenya Pursuant to Article 19 of the ICC
Statute, 2, 9 (Mar. 31, 2011).
156. The Truth, Justice and Reconciliation Act, (2008) Cap. 6 (Kenya), available at
The Kenya situation thus illustrates the sovereignty problems

that can result from an expansive approach to the exercise of interna-
tional jurisdiction. It is at least arguable that the Kenyan govern-
ment's interest in retaining exclusive jurisdiction to investigate and
prosecute the crimes (or perhaps choose an alternate path such as a
truth commission) should have outweighed the international interest
in ICC prosecution. Such conflicts between the interests of sovereign
states and those of the international community in international pros-
ecution will increase in intensity if the expansion of international
criminal law discussed above continues.
The conflict with sovereignty also arises when international
courts invoke the concept of gravity to reject defenses based on sov-
ereign immunity. In explaining the decision to deny former Liberian
president Charles Taylor immunity, the SCSL relied in part on "the
nature of the offenses for which jurisdiction was vested in these [ad
hoc international] tribunals"-an implicit reference to gravity. 157 As
Charles Jalloh has written, the Taylor decision is seen as proof that
the "long arm of international criminal law [can] extend to reach the
most powerful state official, so long as that person commits crimes
158
that shock the conscience of the international community."
In rejecting a similar claim in the case of former Yugoslav
president Milosevic the ICTY quoted the House of Lords' decision in
the Pinochet case that "[i]n future those who commit atrocities
against civilian populations must expect to be called to account if
fundamental human rights are to be properly protected." 159 The anti-
immunity doctrine is thus rooted in the widely accepted view that no
one should be exempt from punishment for the sorts of crimes that
have typically concerned international courts in the past-large-scale
http://www.tjrckenya.org/images/documents/TJRC-Act.pdf.
157. Prosecutor v. Taylor, Case No. SCSL-03-01-I, Decision on Immunity from
Jurisdiction, 149 (May 31, 2004) ("The nature of the offences for which jurisdiction was
vested in these various tribunals [i.e. the ICTY, ICTR, ICC, and Tokyo and Nuremberg
International Military Tribunals] is instructive as to the circumstances in which immunity is
withheld.").
158. Charles Jalloh, Immunity from Prosecution for InternationalCrimes: The Case of
Charles Taylor at the Special Court.Ibr Sierra Leone, AM. Soc'Y OF INT'L L., http://www.
asil.org/insigh I45.cfin#_edn6 (last visited Oct. 13, 2011).
159. Prosecutor v. Milosevic, Case No. IT-02-54, Decision on Preliminary Motions, 11
33 (Int'l Crim. Trib. for the Former Yugoslavia Nov. 8, 2001), http://www.icty.org/xlcases/
slobodan milosevic/tdec/en/ 1110873516829.htm (emphasis added). The ICJ may also have
implicitly relied on gravity when it declared in the Yerodia decision that international courts
are not required to respect immunity. See Arrest Warrant of 11 April 2000 (Dem. Rep.
Congo v. Belg.), 2002 I.C.J. 3, 7161, (Feb. 14, 2002).
human rights abuses often labeled "atrocities."

As the subject matter of international courts expands, howev-
er, it becomes less clear that accountability should trump concerns
related to international order. As the ICJ has explained, sovereignty
immunity is rooted in the need for state officials to be able to perform
their functions without fear of arrest. 160 It is in the interest of the in-
ternational community as a whole and of individual states that per-
sons representing states be able to travel freely. But when an official
is suspected of committing genocide or other widespread human
rights abuses, the value of enabling that person to conduct state busi-
ness pales in comparison to the need to hold them accountable for
their crimes.
The balance may tip the other way for less serious crimes,
however. Imagine, for example, a head of state accused of superior
responsibility for a single war crime of disproportionately destroying
enemy property. Assuming the state is a party to the ICC Statute and
the other jurisdictional requirements are met, the Court may adjudi-
cate the crime. But it is far from clear that the ICC should adjudicate
the crime rather than respecting the state's right to conduct its busi-
ness through its elected representatives. In general, then, as gravity
decreases, other values may outweigh the value of international pros-
ecution.
Similarly, the developing norm that international courts disre-
gard domestic amnesties is justified largely by reference to the gravi-
ty of the crimes such courts adjudicate. Although still controver-
sial, 16 1 international law increasingly supports the view that amnesty
is not permitted for international crimes and that when national sys-
162
tems grant such amnesties, international courts will ignore them.
The anti-amnesty norm limits state sovereignty by constraining the
tools available to political leaders seeking to transition from conflicts
and represents a significant shift from long-standing state practice.
As Ronald Slye points out, "[a]mnesties of one form or another have
been used to limit the accountability of individuals responsible for
gross violations of human rights in every major political transition in
the twentieth century." 163 The Rome Statute does not explicitly ad-
dress the legality of amnesties but declares in its preamble that all
160. Arrest Warrant of 11 April 2000, supra note 159, 54 55.

161. ANTONIO CASSESE, INTERNATIONAL CRIMINAL LAW 315 (2003).
162. See in/ra notes 162-167 and accompanying text.
163. Ronald C. Slye, The Legitimacy (#Amnesties under InternationalLaw and General
Principles of Anglo-American Law: Is a Legitimate Amnesty Possible?, 43 VA. J. INT'L L.
173, 178 (2002).
states have an obligation to prosecute perpetrators of international

crimes. 164
Courts applying the anti-amnesty norm rely heavily on the
gravity of international crimes as justification. Thus, for example,
the SCSL has held that there is a "crystallizing international norm
that a government cannot grant amnesty for serious violations of
crimes under international law .. ,,165 In refusing to respect an am-
nesty that the government of Sierra Leone had granted to defendants,
the SCSL Appeals Chamber noted that several treaties, including the
Genocide Convention, require states to prosecute international
crimes. 166 Moreover, while the court recognized that "the grant of
amnesty or pardon is undoubtedly an exercise of sovereign power," it
held that
[w]here jurisdiction is universal, a State cannot de-
prive another State [or an international or hybrid tri-
bunal] of its jurisdiction to prosecute the offender by
grant of amnesty. It is for this reason unrealistic to re-
gard as universally effective the grant of amnesty by a
State in regard to grave international crimes in which
there exists universal jurisdiction. 167
In a similar decision, the ECCC refused to respect a pardon
granted to one of its defendants. 168 Again, the court relied on the
gravity of the crimes to justify its decision. It stated: "Cambodia...
continues to have an obligation to ensure that victims of crimes
against humanity which, by definition, cause serious violations of
human rights, were and are afforded an effective remedy." 169 The
U.N. Secretary General has also weighed in, rejecting amnesty for se-
rious international crimes. 170
164. See Rome Statute, supra note 2, art. 3 ("[T]he most serious crimes of concern to
the international community as a whole must not go unpunished and . . .their effective
prosecution must be ensured by taking measures at the national level and by enhancing
international cooperation.").
165. Prosecutor v. Kallon, Case No. SCSL-04-15-AR72(E), Decision on Challenge to
Jurisdiction: Lom& Accord Amnesty, 182 (Mar. 13, 2004).
166. Id.
167. Id. at 28.
168. Prosecutor v. leng Sary, Criminal Case File No. 002/19-09-2007-ECCC/OCIJ
(PTC75), Decision on leng Sary's Appeal Against the Closing Order, 1201 (Apr. 11, 2011).
169. Id.
170. UN Secretary-General, Report on TransitionalJustice and the Rule of Lalv in
Conflict and Post Conflict Societies, 32 (Aug. 23, 2004), available at http:/daccess-dds-
ny.un.org/doc/UNDOC/GEN/NO4/395/29/PDF/NO439529.pdf?OpenElement.
Like the denial of immunity in international courts, the ex-

pansion of international crimes raises concerns about the tendency of
such courts to disregard amnesties on the basis of categorical state-
ments of gravity. If international crimes encompass less and less se-
rious harms and forms of responsibility, it becomes increasingly
problematic to limit the strategies available to states seeking to re-
cover from conflicts.
Take, for example, a situation where both sides have commit-
ted war crimes of the reckless or negligent varieties; that is to say,
they have not intentionally violated the laws of war but have failed
adequately to abide by the principles of proportionality and distinc-
tion. Although such crimes are within the jurisdiction of the ICC, it
is not clear that a state should be required to prosecute their perpetra-
tors rather than granting them amnesty in an effort to secure peace.
A similar problem arises in the context of the legal rules sur-
rounding arrest of defendants. International law generally does not
allow states to abduct residents of other states, even those who have
committed crimes. Nonetheless, the ICTY Appeals Chamber applied
the legal maxim male captus bene detentus (wrongly captured,
properly detained) in the Nikolic case to justify its exercise of juris-
diction over a defendant who had been abducted. 171 The Appeals
Chamber held that the international community's interest in adjudi-
cating serious crimes outweighs the state's sovereignty interest, stat-
ing:
[T]he damage caused to international justice by not
apprehending fugitives accused of serious violations
of international humanitarian law is comparatively
higher than the injury, if any, caused to the sovereign-
ty of a State by the limited intrusion into his territory,
particularly when the intrusion occurs in default of the
State's cooperation. Therefore, the Appeals Chamber
does not consider that in cases of universally con-
demned offences, jurisdiction should be set aside on
the ground that there was a violation of the sovereign-
ty of a State when the violation is brought about by
the apprehension of fugitives from international jus-
tice, whatever the consequences for the international
171. Prosecutor v. Nikolic, Case No. IT-94-2-AR73, Decision on Interlocutory Appeal

Concerning Legality of Arrest, 24, 26 (Int'l Crim. Trib. for the Former Yugoslavia June
5, 2003). The U.S. Supreme Court upheld this rule in Alvarez-Machain v. United States, 504
U.S. 655 (1992).
responsibility of the State or organization involved. 172

The Appeals Chamber based this policy declaration, in part,
on state practice, citing the Eichmann and Barbie cases for sup-
port. 17 3 In Eichmann, the Supreme Court of Israel justified its deci-
sion to exercise jurisdiction over a Nazi war criminal abducted from
Argentina partially on the grounds that he was charged with "crimes
of an universal character ... condemned publicly by the civilized
world." 174
Similarly, in Barbie, the French Court of Cassation asserted
jurisdiction over the defendant partially because of the "special na-
ture of the crimes ascribed to the accused, namely, crimes against
humanity." 17 5 Thus, the ICTY Appeals Chamber identified the seri-
ousness of genocide, crimes against humanity and war crimes as a
cognizable basis for refusing to set aside jurisdiction in forcible ab-
17 6
duction cases.
The Nikolic judgment has been criticized for elevating the
prosecution of "core international crimes" above other considera-
tions, such as abuse of process. 177 This concern is magnified if one
considers that international crimes are expanding. Even assuming in-
ternational criminal courts should exercise jurisdiction over cases in-
volving abductees responsible for large-scale harm, the same may not
be true for those who commit isolated crimes or crimes that inflict
relatively minor harms.
B. IncreasedRisk of Substantive Unfairness to Defendants
The concept of gravity is also invoked to justify relaxing the
172. Prosecutor v. Nikolic, Case No. IT-94-2-AR73, Decision on Interlocutory Appeal

Concerning Legality of Arrest, 1 26 (Int'l Crim. Trib. for the Former Yugoslavia June 5,
2003).
173. Id.119.
174. Attorney-General of Israel v. Eichmann, 36 I.L.R. 277 (Sup. Ct., 1962).
175. Federation Nationale des Deportes et Internes Resistants et Patriots et autres c.
Barbie (1988) 78 I.L.R. 125, 130-31 (Cass. Crim., 1983).
176. Id. 7124. The ICTY Appeals Chamber may have misconstrued the Eichmann and
Barbie courts' invocation of the nature of the alleged offenses in their respective cases. In
Robert Currie's view, the courts looked to the seriousness of the crimes in question to justify
their exercise of substantive, not personal, jurisdiction over extra-territorial offenses. Robert
J. Currie, Abducted Fugitives Be/ore the International Criminal Court: Problems and
Prospects, 18 CRIM. L.F. 349, 370 (2007).
177. E.g., Currie, supra note 176, at 356, 370 (describing this expansion of international
criminal law as "truly break[ing] new ground").
legal rules that protect defendants. Indeed, a Latin maxim holds that
"in delictis atrocissimus jura transgredi liceat" (with atrocious
crimes, legal rules can be relaxed). 178 Thus, for example, courts have
invoked gravity to reject defenses based on the principle of legality-
or nullum crimen sine lege. 179 That principle is designed to provide
notice to defendants of the types of conduct that are punishable and
thus ensure the fair application of the law.
International courts have repeatedly denied defendants' le-
gality defenses at least partly on the grounds that the crimes at issue
were so serious that the defendants should have known of their ille-
gality. For example, in the Tadic case, the ICTY Appeals Chamber
stated that defendants could be held liable under the newly minted
theory of joint criminal enterprise because "the moral gravity of such
participation is often no less-or indeed no different-from that of
those actually carrying out the acts in question." 180 Similarly, when
defendants at the ICTR objected that applying the new doctrine in the
context of internal armed conflicts violated the principle of legality,
the trial chamber replied that "any potential perpetrator was able to
understand that the criminalization of acts of such gravity did not de-
pend on the international or internal nature of the armed conflict." 181
178. E.g., Van Schaack & Slye, supra note 64, at 362; Mirjan Damaska, The Shadow
Side of Command Responsibility, 49 AM. J. ComP. L. 455, 482 (2001). See also Caroline L.
Davidson, May it Please the Crowd? The Role of Public Confidence, Public Order and
Public Opinion in Bail Ibr International Criminal Dendants, 43 COLUM. HUM. RTs. L.
REV. 349, 402 (2012) ("Arguably, the gravity of international crimes means that the
ordinary rules go out the window.").
179. See, e.g., NUREMBERG, supra note 20, at 444 ("[I]t is to be observed that the
maxim 'nullum crimen sine lege' is not a limitation on sovereignty, but is in general a
principle of justice. To assert that it is unjust to punish those who in defiance of treaties and
assurances have attacked neighbouring States without warning is obviously untrue, for in
such circumstances the attacker must know that he is doing wrong, and so far from it being
unjust to punish him, it would be unjust if his wrong were allowed to go unpunished.");
Prosecutor v. Milutinovic, Sainovic & Ojdanic, Case No. IT-99-37-AR72, Decision on
Dragoljub Ojdanic's Motion Challenging Jurisdiction: Joint Criminal Enterprise, 111137-42
(Int'l Crim. Trib. for the Former Yugoslavia May 21, 2003) (rejecting defense of nullum
crimen sine lege, in part, because of grievous nature of accused's actions). See Van
Schaack, supra note 20, at 134 35 (2008) (citing, among other authorities, Prosecutor v.
Delalic, Mucic, Delic & Landzo, Case No. IT-96-21-T, Judgment, 403 (Int'l Crim. Trib.
for the Former Yugoslavia Nov. 16, 1998)).
180. Prosecutor v. Tadic, Case No. IT-94-1 -A, Judgment, 191 (Int'l Crim. Trib. for the
Former Yugoslavia July 15, 1999).
181. Prosecutor v. Karemera, Case No. ICTR-98-44-T, Decision on the Preliminary
Motions by the Defence of Joseph Nzirorera, Edouard Karemera, Andre Rwamakuba and
Mathieu Ngirumpatse Challenging Jurisdiction in Relation to Joint Criminal Enterprise, 44
(May 11, 2004).
The SCSL used similar reasoning in convicting defendants retroac-

tively of the newly codified crimes of enlisting child soldiers and
182
forced marriage.
In an important article on the principle of legality in interna-
tional criminal law, Beth Van Schaack defends the tendency of inter-
national courts to elide the principle of legality on the grounds that
defendants are not deprived of notice because international crimes
generally have analogues in national law. 183 She argues that defend-
ants are not prejudiced as long as courts follow national sentencing
practices for analogous crimes. 184 But as international criminal law
expands it increasingly reaches conduct that is not criminal in most
domestic systems including, for example, the crime of enlisting child
soldiers and liability under the expanded theory of joint criminal en-
terprise. 185 Indeed, Kai Ambos has argued that the ICTY's expansive
interpretation of superior responsibility has denied defendants fair
notice of the law. 186 Moreover, as Shahram Dana has noted, interna-
tional sentences do not always comport with national practice. 18 7 Fi-
nally, even when a domestic analogue exists, international conviction
may be unfair to defendants in that it may carry a substantially great-
er moral stigma.
Even more troubling than concerns about the principle of le-
gality are recent findings that judges at international criminal courts
tend to apply a standard of proof below the conventional "beyond a
reasonable doubt." Professor Nancy Combs conducted a large-scale
review of transcripts from proceedings at the ICTR, SCSL and Spe-
cial Panels for East Timor and discovered that those courts routinely
convict defendants on the basis of highly unreliable evidence. 188 In
particular, such convictions often rest on witness testimony that is
riddled with inconsistencies. Combs presents evidence that over fifty
182. Prosecutor v. Brima, Kamara & Kanu (AFRC Case), Case No. SCSL-04-16-A-675,
Judgment, 1111175-86, 293-97 (Feb. 22, 2008); see also Micaela Frulli, Advancing
International Criminal LaI: The Special Court for Sierra Leone Recognizes Forced
Marriageas a 'New' Crime against Humanity, 6 J. INT'L CRIM. JUST. 1033 (2008).
183. Van Schaack, supra note 20, at 168.
184. Id. at 124.
185. See supra notes 98 110 and accompanying text.
186. Ambos, supra note 114, at 178.
187. Shabram Dana, Beyond Retroactivity to Realizing Justice: A Theory on The
Principle of Legality in International Criminal LaIw Sentencing, 99 J. CRIM. L. &
CRIMINOLOGY 857 (2009).
188. NANCY A. COMBS, FACT-FINDING WITHOUT FACTS: THE UNCERTAIN EVIDENTIARY
FOUNDATIONS OF INTERNATIONAL CRIMINAL CONVICTIONS 21-43, 79-100, 149 (2010).
percent of prosecution witnesses at these courts testified in ways that

were inconsistent with their pre-trial statements. 189 In fact, her find-
ings suggest that a shockingly high number of such witnesses may be
lying. 190 Combs concludes that the reliance of international courts on
such questionable evidence indicates they are applying a burden of
proof lower than "beyond a reasonable doubt." 191
Although clearly concerned about the implication of her find-
ings for defendants' rights, Combs nevertheless suggests that the
lower burden of proof at international courts may be acceptable when
such courts convict leaders of organizations committing serious
crimes. 192 Proof of leadership in a criminal organization responsible
for serious crimes may substitute for evidence that a particular de-
fendant committed a particular crime on a particular date. As inter-
national criminal law expands, however, international courts will not
limit their exercise of jurisdiction to leaders of criminal organiza-
tions. Indeed, in the Kenya situation one of the judges has ques-
tioned whether any such organization existed. 193 If international
judges become accustomed to applying loose standards of proof there
is reason to be concerned about their fairness to at least some defend-
ants.
Finally, judges justify relaxed criminal procedures by invok-
ing the gravity of the crimes at issue. 194 For example, defendants are
subject to lengthy pre-trial detention and denied provisional release
in part based on the gravity of the crimes alleged. 195 Mirjan
189. Id. at 5.
190. Id. at 6.
191. Id. at 364.
192. Id. at 244.
193. See Situation in the Republic of Kenya, Case No. ICC-01/09, Decision Pursuant to
the Republic of Kenya, Dissenting Opinion of Judge Hans-Peter Kau], 150 (Mar. 31, 2010)
("While I accept that some of the violence appears to have been organized and planned in
advance, I fail to see the existence of an 'organization' behind the violent acts which may
have established a policy to attack the civilian population within the meaning of article
7(2)(a) of the Statute."). Moreover, at least for the ICC, there are good reasons to argue that
the exercise of jurisdiction should not be limited to leaders of criminal organizations. See
generally deGuzman, Choosing to Prosecute, supra note 10 (arguing that the ICC's focus
should be on expressing moral norms through a small number of illustrative prosecutions).
194. See Caroline L. Davidson, No Shortcut on Human Rights: Bail and the
International Criminal Trial, 60 AM. U. L. REV. 1,33 34 (2010).
195. Id. at 33. See also Johan David Michels, CompensatingAcquitted Dqendants br
Detention he/ore International Criminal Courts, 8 J. INT'L CRIM. JUST. 407, 415 (2010)
(citing Prosecutor v. Delalic, Case No. IT-96-21-A, Decision on Motion for Provisional
Damagka has written that such "departures by international criminal

tribunals from domestic standards of fairness" may be justified in
part by "the atrocity of crimes they process." 196 Damagka's stance is
premised on his view that the jurisdiction of international courts "is
reserved for some of the most horrendous crimes imaginable, and...
these tribunals are specifically charged with ending the impunity of
the most responsible perpetrators of these crimes." 197 As this paper
has sought to demonstrate, however, international criminal jurisdic-
tion is not as limited as Damagka presumes, and is likely to expand
further in the future. As such, ambiguous invocations of gravity to
justify incursions on defendants' rights are becoming increasingly
problematic.
International criminal law's expansion since Nuremberg and
its likely continued expansion thus raise concerns about whether the
regime adequately respects the sovereignty interests of states and the
fairness interests of defendants.
CONCLUSION
International criminal law is expanding in ways that potential-

ly undermine legitimate sovereignty and individual interests. This is
in part because judges and prosecutors employ gravity imprecisely to
justify expansive doctrines and practices. With little or no analysis,
they declare crimes grave and thus "international," admissible before
the ICC or exempt from the usual rules protecting state or individual
interests. Such uses of gravity enable decision makers to avoid ad-
dressing the conflicts of interests at stake in their decisions.
The history of international criminal law helps to explain this
phenomenon. International criminal law has always been marked by
a tension between, on the one hand, international interests-
particularly the need for accountability to promote human rights
norms-and, on the other hand, sovereignty interests. Gravity has
Release Filed by the Accused Zejnil Delalic, 20 (Int'l Crim. Trib. for the Former
Yugoslavia Sept. 25, 1996)). In Delalic, the ICTY trial chamber stated that "both the
gravity of the offences charged and the unique circumstances in which the International
Tribunal operates justify the shifting of the burden to the accused and the requirement that
he show exceptional circumstances to qualify for provisional release." Prosecutor v.
Delalic, Case No. IT-96-21-A, Decision on Motion for Provisional Release Filed by the
Accused Zejnil Delalic, 20 (Int'l Crim. Trib. for the Former Yugoslavia Sept. 25, 1996).
196. Mirjan Damaska, The Competing Visions qo Fairness: The Basic Choice for
InternationalCriminalTribunals, 36 N.C. J. INT'L L. & COM. REG. 365, 380 (2011).
197. Id. at 370.
been a convenient tool for mediating this tension. Thus, for example,
the international community used gravity's ambiguity to build the
consensus needed to create the ICC.
In many past situations the ambiguity of "gravity" was not
problematic because most people agreed that the balance tipped
strongly in favor of accountability. As the international criminal law
regime expands to address situations and cases closer to the margins,
however, it becomes increasingly important to surface the interests at
stake in decisions about international adjudication rather than mask-
ing them with this ambiguous concept. The process of identifying
fully the relevant interests and developing a procedure for balancing
them will require substantial effort from the regime's prosecutors and
judges, as well as its various stakeholders, including political leaders.
Part of that process will be to refine the regime's use of the
concept of gravity. Current efforts to understand gravity in the con-
text of decisions about international adjudication focus on identifying
factors that, considered collectively, are said to be constitutive of
gravity. 198 The problem with such factor-based tests is that when the
factors are conceived broadly the test is almost infinitely malleable
and when they are narrowed the test constrains the regime in ways
that undermine its intended goals.
Thus far, most articulations have been loose. The ICC prose-
cutor and judges have included in their gravity analyses broadly con-
ceived factors such as the scale of the crimes, the nature of the
crimes, the means of their commission and their impact. 199 Such fac-
tors do little to alleviate gravity's ambiguity because they are easily
manipulated to reach a desired outcome-usually prosecution. 200 If
the number of victims is low the decision-maker can emphasize the
broader impact. Likewise, if the impact is unclear the decision-
maker can highlight the means of commission. There is almost al-
ways some aspect of an international crime that can be reasonably la-
beled grave.
One pretrial chamber proposed a narrower factor-based test.
It declared that to be sufficiently grave for ICC adjudication, cases
must involve widespread or systematic criminality and target the
most responsible organizational leaders. 20 1 The Appeals Chamber
198. See supra notes 66-68 and accompanying text.

199. Situation in the Republic of Kenya, Case No. ICC-01/09-19, Decision Pursuant to
the Republic of Kenya, 162 (Mar. 31, 2010).
200. deGuznan, Choosing to Prosecute,supra note 10, at 295 96.
201. Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Concerning
rejected the test, however, in part on the grounds that it would un-
dermine the Court's ability to deter crimes-non-leaders would have
nothing to fear from the ICC.202
The Appeals Chamber was right. In fact, virtually any effort
to narrow the gravity factors would undermine some goal of interna-
tional prosecution. For example, limiting international adjudication
to crimes resulting in large numbers of victims would undermine the
Court's ability to prevent crime by prosecuting attempt or early-stage
crimes. It would also exclude from the regime conduct with limited
numbers of direct victims but substantial ancillary harm such as the
killing of a political leader.
Even more importantly, a narrowly conceived factor-based
test would reduce the ICC's ability to stimulate national prosecutions.
Although there is significant debate about the ICC's ability to ac-
complish directly its various goals, 20 3 many commentators agree that
the Court's most significant potential impact lies in stimulating na-
tional prosecutions of international crimes. A narrow gravity test
would reduce the Court's reach and thus its ability to spur accounta-
bility at the national level. 20 4 In sum, a broad gravity test fails to re-
solve the problem of ambiguity and a narrow interpretation resists
expansion at the cost of the regime's key objectives.
The solution to this dilemma lies, at least in part, in acknowl-
edging the relationship between gravity determinations and the inter-
ests at stake in decisions about international adjudication. When
gravity is used to determine the appropriateness of international ad-
judication it has little meaning in the abstract. In this context, the
purpose of gravity is to identify the extent of the international com-
Pre-Trial Chamber l's Decision of 10 February 2006 and the Incorporation of Documents
into the Record of the Case Against Mr. Thomas Lubanga Dyilo, Annex 1,111146, 50 (Feb.
24, 2006). This decision was overturned on appeal. See in/ra note 203.
202. Prosecutor v. Ntaganda Dyilo, Case No. ICC-01/04-169, Judgment on the
Prosecutor's Appeal, 1]I]
73-75 (July 13, 2006).
203. See deGuzman, Choosing to Prosecute,supra note 10, at 301 320.
204. Additionally, the controversial principle of universal jurisdiction holds that any
state can adjudicate international crimes. The expansion of these crimes may therefore
encourage a broader application of universal jurisdiction. See Maximo Langer, The
Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational
Prosecution of international Crimes, 105 AM. J. INT'L L. 1, 1 (2011) (citing Restatement
(Third) of the Foreign Relations Law of the United States §§ 402 & cmts. c-g, 404 & cmts.
a b, 423 (1987)); see also Bruce Broomhall, Tolvards the Development qf an Eftctive
System of Universal Jurisdictionfir Crimes under InternationalLaw, 35 NEw ENG. L. REV.
399, 401 02 (2001) (stating that the rationales underpinning international criminal law also
support the application of universal jurisdiction).
munity's interest in accountability. The extent of that interest de-

pends on the goals international prosecution would likely accomplish
(such as deterring crimes, promoting reconciliation, encouraging na-
tional prosecution, or expressing norms) balanced against other com-
peting interests, in particular those associated with sovereignty and
individual rights.
The weaker the international community's interest the more
likely it should cede to such competing interests. It is therefore un-
satisfying for prosecutors, judges or political leaders to declare a case
or situation sufficiently grave in the abstract to merit international ad-
judication. Instead, they should explain why the interests of the in-
ternational community in adjudicating the case or situation are suffi-
ciently strong to overcome whatever interests mitigate against such
adjudication.
If international criminal law is to serve as an instrument of
justice, it can no longer permit gravity to mask the tensions between
global human rights promotion on the one hand, and sovereignty and
individual rights on the other. Instead, gravity should be re-
conceptualized to account for the competing interests at stake in deci-
sions about international adjudication.

Gravity

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Gravity

Uploaded by

Copyright:

Available Formats

Articles

How Serious are International Crimes?

Modern internationalcriminal law was born out of the

* Associate Professor, Temple University Beasley School of Law; Ph.D. Candidate,

Until Nuremberg, criminal justice was considered the prov-

controversial at the time, this idea has come to be widely accepted. 2

national court nor will a national amnesty protect her. A defendant

5. See in/ra Part III.B.

rious enough for international jurisdiction-it was simply obvious.

crimes and modes of responsibility in international criminal law.

I. A VAGUE CONCEPT PROPELS THE DEVELOPMENT OF

As early an authority as Hugo Grotius believed that sover-

gravity have played a pivotal role in justifying the elaboration of in-

ly a consequence of the difficulty of the definitional task-although

A. The Birth ofInternationalCriminalLaw at Nuremberg

After World War I, there was some discussion of establishing

the judges demurred, invoking the gravity of the crimes. 20

permanent international criminal court 24 and to prepare a "draft code

crimes committed by or with the toleration of the State. 31 The abuse

31. Report ofthe InternationalLaw Commission to the GeneralAssembly: Report of

tionally serious" war crimes would be omitted. 36 Although the ILC

by reference to their gravity. 42

B. PhaseII The Ad Hoc InternationalCriminalTribunals

Another turning point in the development of international

cerned about respecting sovereignty because the states in question

C. PhaseIII: The ICC

Gravity played its most important constructive role at the

the Court would deal only with crimes of exceptional gravity.

49. U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an

ty markers of "widespread" and "systematic" were listed as alterna-

55. Rome Statute, supra note 2, art. 17(l)(d).

D. The post-Rome Conference InternationalTribunals

The momentum created by the ad hoc tribunals and the adop-

tablishment of the STL thus seems to manifest, at least among some

I. THE EXPANSIONIST TREND IN INTERNATIONAL CRIMINAL LAW

In their exploration of the history of international criminal

65. ICC-OTP, Draft Policy Paper on PreliminaryExaminations, 70, (Oct. 4, 2010),

The most dramatic judicial broadening of the harms subject to

77. Id. at 22 23.

Even the definition of genocide, the crime spawned by the

2002) (sustaining convictions of defendants convicted of crimes against humanity for

Although the ICC judges have yet to rule on the meaning of

Trib. for the Former Yugoslavia Jan. 17, 2005).

more limited scope of harm than that addressed by prior international

Finally, as already mentioned, the U.N. Security Council cre-

ii. Decreasing Culpability

International criminal courts have also adopted expansive ap-

and Decision on the "Prosecutor's Application Pursuant to Article 58 as to Muammar

This mode of liability, although permitted in some national

For the Former Yugoslavia July 15, 1999).

tions rely on this theory of liability. 108 In a particularly controversial

may be basing convictions for crimes that are considered especially

Many of the judicial developments discussed above reflect the

i. The Broad Goals of International Criminal Courts

The broad goals that international criminal courts pursue fos-

tional courts to prosecute. 122 This vision of the ICC's complementa-

ii. Identities and Incentives of International Judges and Prosecutors

Additional reasons to predict the continued expansion of in-

sive interpretations of crimes against humanity to include opportunis-

tional incentives. Faced with defendants who have killed, raped, or

III. THE CONSEQUENCES OF EXPANSION

To the extent commentators have remarked upon the expan-

democratic 140 and counter-productive. 141 The regime's expansion is

A. Expansion's Consequencesfor Sovereignty