Articles How Serious are International Crimes? The...

Articles

How Serious are International Crimes?The Gravity Problem in International

Criminal Law

MARGARET M. DEGUZMAN*

Modern international criminal law was born out of theHolocaust-the systematic extermination of millionsof people. It was the gravity of those crimes that pro-vided the theoretical and political justifications for thefirst international criminal trials at Nuremberg. Yettoday, the International Criminal Court's Office of theProsecutor is considering situations involving as fewas six killings and an international tribunal has beenestablished to address the assassination of a singlepolitical leader. This Article explains how the ambi-guity of international criminal law's foundationalconcept of gravity has facilitated this expansion andexposes some problematic consequences of the expan-sionist trend for state sovereignty and individualrights. Finally, the Article suggests a solution thatmoves beyond ambiguous gravity to interrogate theinterests at stake in decisions about internationalcriminal 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 Schoolof Law and Diplomacy; B.S.F.S., Georgetown University School of Foreign Service. Forhelpful comments on earlier drafts I am grateful to Jane Baron, Elena Baylis, Shahram Dana,Jean Galbraith, Craig Green, Richard Greenstein, Charles Jalloh, Laura Little, GregoryMandel, Milan Markovic, Jaya Ramji-Nogales, William Schabas, James Shellenberger,David Sonenshein, Peter Spiro, Beth Van Schaack, Jenia Turner, and David Zaring. I amalso indebted to Jeffrey Azarva, Douglas Maloney, Anthony Rock, and Michael Witsch forexcellent research assistance.

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 atN urem berg ................................................................. 25

B. Phase II: The Ad Hoc International CriminalT ribunals ...................................................................... 30

C . Phase III: The ICC ...................................................... 31

D. The post-Rome Conference International Tribunals ....... 35

II. THE EXPANSIONIST TREND IN INTERNATIONAL CRIMINAL

L A W .......................................................................................... 3 6

A. Evidence of Expansion ............................................... 38

i. Broadening Harm s .................................................. 38

ii. Decreasing Culpability ........................................... 44B. Predicting Continued Expansion ................................. 48

i. The Broad Goals of International Criminal Courts .... 48

ii. Identities and Incentives of International Judgesand Prosecutors ...................................................... 50

III. THE CONSEQUENCES OF EXPANSION .................................... 53

A. Expansion's Consequences for Sovereignty ................ 54

B. Increased Risk of Substantive Unfairness toD 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 somecrimes are so grave as to concern the international community as awhole and therefore to warrant international adjudication. 1 Although

1. Some commentators argue that the Nuremberg tribunal was not truly internationalsince it was established by agreement among a limited number of nations. See, e.g., MakauMutua, From Nuremberg to the Rvanda Tribunal: Justice or Retribution? 6 BUFF. HUM.RTS. L. REV. 77, 79-80 (2000) (quoting Kenneth Anderson, Nuremberg Sensibility: TelbrdTaylor's Memoir of the Nuremberg Trials, 7 HARV. HUM. RTs. J. 281, 289 (1994))(describing Nuremberg tribunal as "'fundamentally an expression of a peculiarly Americanlegal sensibility"' and as an "orchestrated and highly manipulated forum"); Jonathan

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COLUMBIA JOURNAL OF TRANSNA TIONAL LAW

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

The gravity of international crimes is thus the primary conceptualfoundation of international law's authority to administer criminal jus-tice.

3

Important consequences flow from the determination that a"grave" international crime has occurred-consequences that canboth 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 andarguably authorizes any state to do so. 4 An official prosecuted forsuch 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 heavyreliance on American prosecutors and trial process rules."). However, the tribunal wasinternational in the sense that it asserted the authority to interpret and apply internationallaw, 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 tribunaladjudication 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 ... toestablish an independent permanent International Criminal Court ... with jurisdiction overthe most serious crimes of concern to the international community as a whole."); see alsoAbout 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 Statuteof the International Criminal 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, JusticeLater, 2 EYES ON THE ICC 17 (2005) ("It is widely acknowledged that the moralcommitment to protect the most fundamental human rights at a global scale trumps statesovereignty and the legal pillars that sustained classic international law.").

4. See Committee on International Human Rights Law and Practice, International

Law Association, Final Report on the Exercise of Universal Jurisdiction in Respect of GrossHuman Rights Offences, 2 (2000) ("Under the principle of universal jurisdiction a state isentitled 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, 66TEX. L. Riv. 785, 790-91 (1988) (asserting that "all states have the right to assumeuniversal jurisdiction over ... war crimes, hijacking and sabotage of aircraft, the taking ofhostages, 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 forviolations of right to life and right to personal liberty).

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national court nor will a national amnesty protect her. A defendantcharged with such a crime can expect to be detained for a long periodof time before trial, denied bail although she poses no flight risk, andperhaps 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 tohave reasonably well-defined and accepted content in internationallaw. In fact, the opposite is true. Individuals who craft, apply andwrite about international criminal law invariably reference the seri-ousness of the crimes at issue but rarely specify what they mean. 6

Prior to the adoption of the Rome Statute, there was no multi-national treaty delineating the subject matter of international criminallaw and very little relevant practice. 7 Only four tribunals had exer-cised international criminal jurisdiction: the Nuremberg and Tokyotribunals and the International Criminal Tribunals for Former Yugo-slavia and Rwanda (respectively, "ICTY" and "ICTR"). In each ofthese cases, the international community, or at least significant partsof it, acted in response to situations involving hundreds of thousandsor even millions of victims of horrible crimes. The gravity of thecrimes was invoked as the primary justification for establishing thetribunals, 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 internationalcriminal court that "[i]mpunity must no longer be the reward of those who commit the mostegregious international crimes and violations of human rights" without defining how todetermine which crimes are "the most egregious"); Quincy Wright, Proposal for anInternational Criminal Court, 46 AM. J. INT'L L. 60, 63 (1952) (discussing proposals for anInternational Criminal Court that would "assur[e] the punishment of individuals for actswhich 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 aninternational 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 theICTY, the Security Council invoked gravity rhetoric. See S.C. Res. 827, U.N. DocS/RES/827 (May 25, 1993) ("Expressing . . . grave alarm at continuing reports of

widespread and flagrant violations of international humanitarian law occurring within theterritory 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

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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 judgmentsabout the gravity of crimes committed. The Court's prosecutor andjudges 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 meritinternational adjudication. 9

But the statute does not define the term. This was not a mereoversight on the part of the drafters. Rather, the decision to leavegravity ambiguous facilitated establishment of the Court by mediat-ing between states with an expansive vision of the Court as a vehiclefor human rights promotion and states that preferred to limit theCourt's reach in the name of preserving sovereignty. '0 The vague-ness of gravity enabled states on each side of the humanrights/sovereignty debate to support the creation of the Court eventhough they did not share a vision of the Court's role in the world.

While the ambiguity of gravity served a creative purpose atthe ICC's inception, it has become increasingly problematic at theoperational stage. I have argued elsewhere that international criminallaw's reliance on the concept of gravity threatens the legitimacy ofthe ICC II and undermines the Court's ability to justify its decisionsabout which situations and cases to prosecute. 12 This Article elabo-rates a third consequence of gravity's central role in internationalcriminal law: that as the regime expands, its justifications for curtail-ing state sovereignty and limiting defendants' rights become moreand more attenuated.

International criminal law is no longer exclusively focused oncrimes like the Holocaust or the Rwandan genocide. The ICC prose-cutor is currently considering whether to act with regard to situationsinvolving as few as six deaths and violence that occurred on a singleday. 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

International Criminal 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 International CriminalCourt, 32 FORDHAM INT'L L.J. 1400 (2009).

12. deGuzman, Choosing to Prosecute, supra note 10.

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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, thebreadth of goals attributed to international courts and the incentivesof international prosecutors and judges.

This Article challenges the conventional wisdom that thereach of international criminal law is limited to crimes of exceptionalgravity. It shows that international criminal law is expanding andexposes 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 useddoctrine and discretion to broaden the types of harms and perpetra-tors international criminal law encompasses, thereby diluting thegravity requirement. It further elucidates the forces that make inter-national criminal law's continued expansion highly probable, if notinevitable. Part III explains why the expansion of international crim-inal law should concern even the regime's supporters. When vaguenotions of gravity are deployed to justify adjudicating borderline cas-es other important interests are sometimes sacrificed. The use ofgravity to expand jurisdiction impinges on the interests of states inmaintaining authority within their territories; and its use to expandmodes of liability and curtail defenses threatens defendants' interestsin due process. The conclusion therefore suggests a solution to inter-national criminal law's gravity problem: rather than using gravity tomask the important interests at stake in decisions about internationaladjudication, decision makers should surface and balance those inter-ests. By engaging rather than avoiding conflicting interests, decisionmakers can help to ensure that international criminal law serves topromote 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 Press1925) (emphasis added) ("[K]ings, and those who possess rights equal to those kings, have

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gravity have played a pivotal role in justifying the elaboration of in-ternational crimes and the creation of institutions to adjudicatethem. 14 Yet despite the pervasive invocations of the concept, littleeffort has been made to define gravity. This was not inevitable-likethe 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 certainnumber of victims, 15 or involving cross-border harm, or perpetratedby government actors. Instead, the creators of international criminallaw 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 againstthemselves or their subjects, but also on account of injuries which do not directly affect thembut excessively violate the law of nature or of nations in regard to any personswhatsoever."). 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 somewriters, that sovereign kings have the power of avenging injuries done in any part of theworld, is entirely false, and throws into confusion all the orderly distinctions ofjurisdiction.").

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 CriminalTribunal 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 ofinternational 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 ICTRStatute] (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 greatestresponsibility for serious violations of international humanitarian law"); Law on theEstablishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecutionof Crimes Committed During the Period of Democratic Kampuchea, art. 1, Oct. 27, 2004,NS/RKM/1004/006 [hereinafter ECCC Statute] (establishing jurisdiction over "those whowere most responsible for the crimes and serious violations of Cambodian penal law,international humanitarian law and custom, and international conventions recognized byCambodia, that were committed during the period from 17 April 1975 to 6 January 1979");Rome Statute, supra note 2, pmbl. (establishing jurisdiction over "the most serious crimes ofconcern 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 (defininggenocide and mass atrocities as mass killings involving minimum of 5,000 intentionallykilled civilians).

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ly a consequence of the difficulty of the definitional task-althoughthat is certainly an important factor. Rather, the concept has been leftundefined because its ambiguity has served a productive function inthe regime's development: to mediate between the competing pullsof state sovereignty and the burgeoning human rights movement.The evolution of international criminal law has been part of the largermovement 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 bysimultaneously reassuring states concerned about sovereignty andproviding space for human rights promotion.

A. The Birth of International Criminal Law at Nuremberg

After World War I, there was some discussion of establishinga court to prosecute crimes against humanity, but the world was notyet ready for the necessary limitation of sovereignty and the effortwas abandoned. 17 World War II proved to be the turning point. Af-ter the Nazis ruthlessly slaughtered millions of people the Allies sawfit 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 defendantsobjected that some of the charges violated the principle of legality, 19

16. Jan Klabbers, The Spectre of International Criminal 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, THEONSET 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 domesticjurisdiction is now increasingly conditional on conformity with international rules andprinciples, especially human rights norms.").

17. The United States objected to the proposal on the grounds that "crimes againsthumanity" did not exist under international law. See Memorandum of ReservationsPresented by the Representatives of the United States to the Report of the Comm'n onResponsibilities (Apr. 4, 1919), Annex II, reprinted in Commission on the Responsibility ofthe Authors (f the War and on En/brcement (f Penalties: Report Presented to thePreliminary Peace Conerence (Mar. 29, 1919), 14 AM. J. INT'L L. 95, 134 (1920).

18. But see supra note I (analyzing whether Nuremberg was truly "international").

19. The International Military Tribunal (IMT) was the first court to adjudicate "crimesagainst peace," which are the precursors to the crime of aggression, and "crimes againsthumanity," which were included to enable the IMT to prosecute crimes the Nazis had

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

No one felt a need to explain what made the crimes of theHolocaust grave. But the opposing tug of sovereignty was felt evenin the face of the worst crimes the world had ever seen. For example,in defining "crimes against humanity," the drafters did not simplyinclude all large-scale murders, rapes and other crimes of violence. 21

Instead, they limited crimes against humanity to crimes committed inconnection with the war. 22 This "war nexus" provided at least an ar-guable link to the preexisting international law that respected statesovereignty. 23 The gravity of the crimes committed in World War IIthus solidified the idea of international criminal jurisdiction, but theimplementation of that idea still evidenced considerable respect forthe 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 ofwar 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 toinclude some notion of scale even though the Nuremberg judgment did not reflect thatunderstanding.

22. See Nuremberg Charter, supra note 14, art. 6(c) (defining crimes against humanity

as "murder, extermination, enslavement, deportation, and other inhumane acts committedagainst any civilian population, before or during the war; or persecutions on political, racialor religious grounds in execution of or in connection with any crime within the jurisdictionof the Tribunal, whether or not in violation of the domestic law of the country whereperpetrated"); NUREMBERG, supra note 20, at 468 (determining that, for acts to constitutecrimes against humanity, they must be made "in execution of, or in connection with" thewar).

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 thedrafters of the Charter to condemn specific inhumane acts of Nazi perpetrators committedwithin Germany without threatening the entire doctrine of state sovereignty."); see alsoWILLIAM 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.").

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permanent international criminal court24 and to prepare a "draft codeof offences against the peace and security of mankind" ("DraftCode"). 25 The ILC was thus supposed to consider the feasibility ofan international criminal jurisdiction and to try to figure out whatcrimes might be the subject of such jurisdiction. 26 The ensuing ILCdeliberations provide further evidence of the human rights/sover-eignty tension that has characterized the development of internationalcriminal law and of gravity's role as mediator.

In his first report on the "Question of International CriminalJurisdiction," Special Rapporteur Ricardo Alfaro noted that a mem-ber of the Commission had objected that such jurisdiction would becontrary 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 claimedthat sovereignty must yield to the need "to prevent crimes against thepeace and security of mankind and crimes against the dictates of thehuman 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 orare especially serious.

The same rationales dominated the early discussion of theDraft Code. At first, in seeking to identify the essence of crimes tobe included in the Draft Code, the ILC looked to their "highly politi-cal nature." 29 Crimes were international when they were committedor tolerated by a state and threatened international peace. 30 TheCommission 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 Peaceand 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 internationalcriminal court the crimes in the Draft Code could be prosecuted by national courts. Report ofthe International Law Commission to the General Assembly, 6 U.N. GAOR, Supp. No. 9, at10 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

Criminal Jurisdiction, [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 andSecurity of Mankind, [1950] 2 Y.B. Int'l L. Comm'n 253, 259, U.N. Doc. A/CN.4/25.

30. Id.

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crimes committed by or with the toleration of the State. 31 The abuseof sovereignty was thus what made crimes against humanity of con-cern to the entire world. Indeed, this idea remains central in some ofthe scholarship and jurisprudence of international criminal law to-day.32

But in the 1980s, when the ILC deliberations resumed after along hiatus, the new Special Rapporteur, Doudou Thiam, moved tochange the focus of the ILC's work from politics to gravity. 33 TheCommission agreed and voted unanimously to reject the 1954 DraftCode'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 International Law Commission to the General Assembly: Report ofthe International Law Commission Covering the Work ofits Sixth Session, 3 June 28 July1954, 9 U.N. GAOR, Supp. No. 9, at 10, U.N. Doc. A/5509 (1954), reprinted in [1954] 2Y.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 thatfor conduct to be considered a crime that "affect[s] the interests of the world community asa 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 toState complicity but others "are committed on such a scale that it is reasonable to askwhether they have not made the shift from internal law to international law and becomeinternational 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 distinctionbetween crimes under internal law and crimes under international law is relative and at timesarbitrary." Id. Thiam was not satisfied with the 1954 Draft Code's reliance on politics asthe 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 theNiirnberg Tribunal were struck not so much by the political content of the crimes with whichthey were concerned as by their gravity, their atrociousness, their scale and their effects onthe international community." Id.

34. Report of the International Law Commission on the Work of Its Thirty-FithSession (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-ThirdSession (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. DocA/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 wasaffected by the violations. Id.

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tionally serious" war crimes would be omitted. 36 Although the ILChad numerous discussions about what "serious" would mean forpurposes of defining international crimes, 37 it ultimately gave up,concluding that many factors could be relevant. 38

The ILC's discussions of a potential international criminalcourt 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 Tobagofor help with its problem of transnational drug trafficking, 39 the Gen-eral Assembly asked the ILC to look into the matter not just for suchtransnational crimes but for the crimes in the Draft Code as well. 40

The ILC's draft statute for the ICC (ILC Draft Statute) thus stated inthe preamble that the court would "exercise jurisdiction only over themost serious crimes, that is to say, crimes of concern to the interna-tional community as a whole."' 41 Although the ILC Draft Statuteabandons the Draft Code's heading of "systematic or mass violationsof human rights" in favor of the more traditional "crimes againsthumanity," the commentary emphasizes that such crimes are defined

36. Id. at 104. The 1996 Draft Code dropped this language, but added the requirementthat 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 July1996), 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 International Law 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 bythe extent of the calamity or by its horrific character, or by both at once") (emphasis added);Report of the International Law 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),

reprinted in [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 andthe nature of the interest infringed).

38. Sompong Sucharitkul, Special Rapporteur, Sixth Report on JurisdictionalImmunities o!States and their Property, [1984] 2 Y.B. Int'l L. Comm'n 1, 11-12, U.N. DocA/39/10 (Aug. 9, 1984).

39. See Permanent Representative of Trinidad and Tobago, Letter dated Aug. 21, 1989from 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 International Law 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.

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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 statesovereignty and heightened reliance on gravity to justify internationaljurisdiction. International criminal law thus became a means of pun-ishing and preventing serious human rights violations rather thanmerely a response to abuses perpetrated by state actors.

B. Phase II The Ad Hoc International Criminal Tribunals

Another turning point in the development of internationalcriminal law came in 1993. By then, the post-Soviet geo-politicalclimate had accelerated the human rights movement, making it possi-ble for the Security Council to establish the ICTY to address theatrocities 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-tions employed gravity rhetoric to justify international jurisdiction. 43

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 andRwanda 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 ofcrimes against humanity encompasses inhumane acts of a very serious character involvingwidespread or systematic violations aimed at the civilian population .... The hallmarks ofsuch 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 ... includingreports 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 ofinternational 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 intheir analysis of the Yugoslav conflict showed that the conflict was perceived as extremelybrutal .... ).

44. See, e.g., ICTY Statute, supra note 14, art. 1 5; ICTR Statute, supra note 14, art.

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cerned about respecting sovereignty because the states in questionwere weak or non-existent. Nonetheless, the drafters of the ICTYstatute included the Nuremberg Charter's war nexus in the definitionof crimes against humanity, which had the effect of protecting sover-eignty by excluding crimes unconnected to armed conflict from thetribunal's jurisdiction. 45 But this reticence to expand crimes againsthumanity 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 widespreador systematic nature of the crimes. 46 These elements essentially re-flect gravity: that is, the quantity and quality of harms inflicted. TheICTR statute also reflects a gravity-inspired expansion in the defini-tion of war crimes, as they are no longer limited to crimes committedin international armed conflict. 47 Gravity thus served both to justifythe creation of the ad hoc tribunals and to expand the substantive lawthey applied beyond that used at Nuremberg.

C. Phase III: The ICC

Gravity played its most important constructive role at theRome Conference where the ICC statute was adopted. There, gravityserved repeatedly to mediate conflicts between states seeking to es-tablish a strong court in the service of human rights promotion andstates 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 gravityor 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 (notingthat because the Nuremberg Tribunal required an armed conflict nexus, tribunals andinternational 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 shallhave 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 tonon-international armed conflicts).

48. This dichotomy simplifies the complex web of policy objectives states sought tofurther by supporting or opposing the ICC. Nonetheless, the rough division of delegations tothe Rome Conference into human rights-promoting and sovereignty-protecting campsrepresents an important theme in the negotiations and helps elucidate the important rolegravity played in producing the Court.

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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 warcrimes no matter how minor,49 but for other states this was consid-ered too great an incursion on sovereignty. 50 The latter group ofstates preferred to limit the Court's jurisdiction over war crimes tothose "committed as part of a plan or policy or as part of a large-scale commission of such crimes." 51 In other words, they wanted theCourt's jurisdiction to be limited to war crimes made particularlygrave by their scale or level of organization. The issue could not beresolved in the negotiations. Instead, in the waning hours of the con-ference, the United Nations officials managing the process presentedstates 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 largescale. 52

This provision contains a double ambiguity. First, the refer-ence to "plan or policy or on a large scale" is uncertain in the waythat most efforts to expound gravity are uncertain. What degree oforganization 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 anInternational 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 clearand any threshold adopted might limit the existing rules"); U.N. Diplomatic Conference ofPlenipotentiaries on the Establishment of an International Criminal Court, Rome, It., June15 July 17, 2008, U.N. Doc. A/CONF.183/C.I/SR.27 (July 8, 1998) (noting that therepresentative of the Dominican Republic argued that the proposed thresholds for war crimesshould be rejected because all intentional killings are equally serious, "whether or not [theyare] part of a plan or general policy").

50. U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of anInternational 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 thatthe "Court must deal only with certain heinous crimes of concern to the internationalcommunity, which were committed at a relatively high threshold of criminal activity").

51. U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of anInternational Criminal Court, Report of the Preparatory Committee 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 internationalcommunity" and describing language of Article 8(1) as compromise).

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addition, the use of the term "in particular" leaves it unclear when, ifever, the Court should exercise jurisdiction over war crimes that donot meet this gravity-based threshold. Leaving these questions openwas constructive-it enabled some sovereignty-focused states tosupport the Court while reassuring the human rights-focused statesthat 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 werecommitted 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 ofthe crimes in each situation. By including only a suggestive ratherthan a mandatory gravity-based threshold for war crimes, the RomeStatute provides the first international jurisdiction over situations thatinvolve only war crimes at the low end of the gravity spectrum.

A similar debate took place in the context of crimes againsthumanity. The sovereignty-focused states wanted to limit crimesagainst humanity to crimes that are particularly serious because theyare both widespread and they are committed systematically. In con-trast, the human rights-promoting states wanted these gravity markersto be alternatives. 53 After heated discussions, the Canadian delega-tion brokered a compromise: the alternative formulation would beused but an additional provision would be added defining "attack" as''a course of conduct involving the multiple commission of [theenumerated] acts against any civilian population, pursuant to or infurtherance of a State or organizational policy to commit such at-tack." 54

Although the gravity markers are thus spelled out in greaterdetail for crimes against humanity than for war crimes, the languageremains ambiguous. How many acts qualify as "multiple" and whatdegree of organization is required for an "organizational policy"?Again, this ambiguity was constructive. A delegation seeking toconvince its legislature that a high bar had been set for crimes againsthumanity 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 RomeConference, 93 AM. J. INT'L L. 43, 47 (1999); Arsanjani, supra note 52, at 31.

54. Rome Statute, supra note 2, art. 7(2)(a).

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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 onthe exercise of the Court's jurisdiction: it requires the Court to deeminadmissible cases "not of sufficient gravity to justify further actionby 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 tenyears into the Court's life it remains unclear what the gravity thresh-old requires. 57 This failure to elaborate the meaning of gravity hashelped to enable the Court's establishment and development. It hasallowed states to support the Court without having to share a visionof its role in the world. Human rights-promoting states can see theICC as an institution that broadly seeks to promote human rights andhumanitarian law while sovereignty-focused states can maintain amuch 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 andcrimes against humanity included in the Rome Statute compared toprior statutes. 58 When sovereignty-focused states expressed concernover the inclusion of less serious types of crimes, they were reassuredthat the gravity threshold would ensure that the Court exercises juris-diction only over sufficiently serious instances of those crimes. 59

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

56. For a more detailed discussion of the legislative history of this provision seeMargaret 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 gravitythreshold 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 Chamberrejecting Pre-Trial Chamber's factor-based gravity test).

58. Rome Statute, supra note 2, art. 7, 8. With regard to war crimes, the Rome Statuteincludes a long list of crimes applicable in both international and non-international armedconflicts, including some crimes that are relatively low on the gravity spectrum like makingimproper 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 settingforth the general threshold for crimes against humanity should be read together with itssubparagraph 2(a). This approach provides a basis for compromise on several other actslisted in Article 7 as crimes against humanity."). Arsanjani notes that the use of thedisjunctive ("as part of a widespread or systematic attack") was only accepted because the

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D. The post-Rome Conference International Tribunals

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 situationswhere the crimes were undeniably grave in terms of both the quantityand quality of harm inflicted, including the "auto-genocide" 61 inCambodia and the large-scale and systematic massacres, rapes andtortures in Sierra Leone and East Timor.

One institution stands out, however, as a remarkable expan-sion of international criminal jurisdiction-the Special Tribunal forLebanon (STL). The STL was established by the Security Council toprosecute essentially the killing of one person-former LebanesePrime Minister Rafiq Hariri. 62 Unlike the Security Council resolu-tions establishing the other ad hoc tribunals, the STL's foundingdocument says nothing about the serious nature of the crimes at is-sue. 63 Indeed, the STL's subject matter jurisdiction is limited tocrimes under Lebanese law rather than international crimes. The es-

Art. 7, para. 2(a) language (requiring "multiple commission of acts") was seen as properlylimiting the ICC's jurisdiction to only sufficiently grave or serious commissions of theenumerated offenses. Id. Arsanjani contends that because of this purportedly limiting effectof a seriousness/gravity requirement, a compromise was made possible that allowed theinclusion of several of the specific offenses listed in Art. 7. Id.

60. Agreement Between the United Nations and the Government of Sierra Leone onthe 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=CLkIrMQtCHg%3d&tabid=176; Agreement Between the United Nations and the Royal Government

of Cambodia Concerning the Prosecution under Cambodian Law of Crimes CommittedDuring 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/Agreementbetween UN and RGC.pdf; United Nations Transitional Administration in East Timor(UNTAET), Regulation 2000115: On the Establishment of Panels with ExclusiveJurisdiction over Serious Criminal QOtinces, UNTAET/Reg/2000/15 (June 6, 2000),available at http://www.un.org/en/peacekeeping/missions/past/etimor/untaetR/RegO015E.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 killingof 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 "personsresponsible for the attack of 14 February 2005 resulting in the death of former LebanesePrime Minister Rafiq Hariri and in the death or injury of other persons").

63. Id.

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tablishment of the STL thus seems to manifest, at least among someSecurity Council members, a new understanding that internationalcriminal jurisdiction can be employed even without reference togravity.

The history of international criminal jurisdiction thus demon-strates that gravity-a vague idea about the nature of crimes-hasplayed a key role in mediating between concerns about human rightsand state sovereignty. In so doing, it has facilitated the establishmentof international courts and tribunals as well as the expansion of thelaws they apply.

I. THE EXPANSIONIST TREND IN INTERNATIONAL CRIMINAL LAW

In their exploration of the history of international criminallaw, Beth Van Schaack and Ronald Slye write that "the history of in-ternational criminal law is marked by greater and greater incursionsinto arenas that were historically the exclusive province of sovereignstates." 64 The preceding Part showed how that expansion took placeat the political level through the creation of tribunals with increasedpower over a broadening subject matter. What follows demonstrateshow these institutions have also expanded from within through judg-es' interpretation of their subject matter jurisdiction and the ICCprosecutor's exercise of discretion to decide what situations and cas-es to investigate and prosecute.

Specifically, this Part argues that the judges and prosecutorshave interpreted their tasks so as to bring more and more kinds ofcrimes and defendants within the purview of international criminallaw. Again, the ambiguity of gravity has been helpful, with judgesand prosecutors frequently invoking the concept to justify their ac-tions. Judges explain broad interpretations of crimes by reference tothe gravity of those crimes and the ICC prosecutor invariably invokesthe gravity of crimes committed to justify his decisions about whatsituations to investigate and which cases to prosecute. The indeter-minacy of the concept of gravity has thus facilitated expansion notjust 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 inInternational Criminal Trials, 48 VA. J. INT'L L. 529, 587 (2008) (noting that treatyprovisions have been "interpreted and applied liberally" by international tribunals).

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tional judges and prosecutors have diluted the gravity of the crimesthey investigate and adjudicate. While gravity is an elusive concept,as already discussed, commentators generally agree that the gravityof a case, or cases within a situation, requires some kind of evalua-tion of the harms inflicted and the culpability of perpetrators-a taskthat is both quantitative and qualitative. 65 The notion of harm thusincludes consideration of such factors as the number of victims af-fected, the nature of the crimes, the way they were committed andtheir impact beyond the immediate victims. 66 Culpability relates tothe mental state of the defendant, including his or her role in thecrimes. The evidence presented below suggests that internationalcriminal law is expanding along these dimensions in ways that tendto 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 expansionis 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 morestrictly 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 themselvesadopt a more conservative approach to their work. But for the rea-sons elaborated in Section B below, it is significantly more likely thatthe expansionist trend will continue for the foreseeable future.

65. ICC-OTP, Draft Policy Paper on Preliminary Examinations, 70, (Oct. 4, 2010),available at http://www.icc-cpi.int/NR/rdonlyres/E278F5A2-A4F9-43D7-83D2-6A2C9CF5D7D7/282515/OTPDraftpolicypaperonpreliminaryexaminations04101.pdf [hereinafterDraft Policy Paper on Preliminary Examinations] (describing gravity as "both quantitativeand qualitative" and stating that determinations of gravity include assessment of scale ofcrimes, nature of crimes, manner of commission, and impact of crimes). See Situation in theRepublic of Kenya, Case No. ICC-01/09, Decision Pursuant to Article 15 of the RomeStatute on the Authorization of an Investigation into the Situation in the Republic of Kenya,11 60-61 (Mar. 31, 2010) (noting when ICC considers gravity in context of authorizinginvestigation into situation, Court analyzes whether likely targets of investigation will bethose who bear greatest responsibility for crimes committed and whether specific crimescommitted in situation will be of sufficient gravity). But see David Luban, A Theory ofCrimes Against Humanity, 29 YALE J. INT'L L. 85, 108 (2004) ("Any body-countrequirement threatens to debase the idea of international human rights. ... ); RichardVernon, What is Crime Against Humanity?, 10 J. POL. PHIL. 231, 246 (2002) (arguing thatthe 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.

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A. Evidence of Expansion

i. Broadening Harms

The most dramatic judicial broadening of the harms subject tointernational adjudication was the ICTY's decision to extend individ-ual criminal responsibility to war crimes committed in internal armedconflicts. 67 Until that decision, the prevailing view was that interna-tional law extended individual liability only to crimes committed ininternational armed conflicts. 68 This judicial act significantly trans-formed international criminal law, helping to ensure the inclusion inthe Rome Statute of war crimes committed in non-internationalarmed conflicts. 69

The ICTY judges used gravity rhetoric to justify this expan-sion, stating: "No one can doubt the gravity of the acts at issue, northe interest of the international community in their prohibition."' 70

The extension of international criminal law to non-internationalarmed conflict does not necessarily represent a diminution in gravity.War crimes committed in internal armed conflict arguably can be justas 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 eliminatingthe requirement of cross-border harm, it became more difficult to de-termine what conflicts are sufficiently serious to be termed "armedconflict" at all. 71 Armed conflict for purposes of international crimi-

67. Prosecutor v. Tadic, Case No. IT-94-1, Decision on Defence Motion forInterlocutory Appeal on Jurisdiction, 11 128-37 (Int'l Crim. Trib. for the Former YugoslaviaOct. 2, 1995) [hereinafter Tadic Decision].

68. See Theodor Meron, International Criminalization ofInternal Atrocities, 89 AM. J.INT'L L. 554, 559 (1995) (noting that until the mid-1990s, it was generally accepted thatcustomary international law applicable to non-international conflicts did not include warcrimes); Kenneth W. Abbott, International Relations Theory, International Law, and theRegime 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 InternationalCriminal Tribunals Recast the Laws of War, 59 VAND. L. REV. 1, 35 36 (2006) (discussinginfluence 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 theAppeals 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

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nal law was no longer limited to conflict between national forces butnow 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 effectivelydiminishing the gravity required for international adjudication of warcrimes. 73

Courts have also taken an expansive view of what constitutesa crime against humanity. In particular, judges have interpretedbroadly the requirement that the crimes be part of a widespread orsystematic 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 conceptof crimes against humanity."' 76 Akhavan cites the expansive ICTYinterpretation of the crime against humanity of deportation, which heargues criminalizes combat. According to the ICTY reading of thecrime, 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 (statingthat 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" andfinding that armed conflict existed despite low number of casualties and limited organizationof one party); Prosecutor v. Gotovina, Case No. IT-06-90-PT, Trial Chamber, Decision onSeveral Motions Challenging Jurisdiction, 31 (Int'l Crim. Trib. for the Former YugoslaviaMar. 19, 2007) ("Moreover, the 'in armed conflict' requirement has been interpreted broadlyin 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, thejurisprudence does not require a 'material nexus' between the armed conflict and the acts ofthe 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 CRIMINALLAW 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).

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combatant should have foreseen that the attack would cause civiliansto flee. 77 William Schabas has even suggested that according to theICTY's approach the crimes committed during the London riots ofAugust 2011 would meet the definition of crimes against humanity. 7 8

The ICTR and ICTY have also taken a broad approach to in-terpreting the catchall crimes of "other inhumane acts" and the crimeof persecution. For example, the ICTR has controversially ruled thathate speech can constitute persecution as a crime against humanity. 79

All of these developments at least arguably reduce the gravity re-quired for crimes against humanity.

Although the ICC's jurisprudence is limited, early indicationssuggest that ICC judges may hew to the expansionist example set bythe other tribunals. For example, in its first effort to interpret theRome Statute's requirement that crimes against humanity be commit-ted pursuant to a state or organizational policy, the court held thatgroups of loosely coordinated political leaders and businessmen qual-ified as "organizations." 80 One judge, however, took the view thatorganizations 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 todownplay the significance of the contextual requirement of crimesagainst humanity." 82 Interestingly, not only have the ICC judgestaken an expansive view of the organizational policy requirement, butthe judges of other tribunals have refused to adopt the requirement atall, 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 toArticle 15 of the Rome Statute on the Authorization of an Investigation into the Situation inthe 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 ofOrganization within the Policy Requirement: Some Reflections on the March 2010 ]CCKenya Decision, 23 LEIDEN J. INT'L L. 855, 855-7 (2010) (asserting ICC in Kenya appliedexpansive reading of "organization" because it was clear alleged "groups" lacked anythingclose to state-like level of organization).

83. See, e.g., ICTY Statute, supra note 14, art. 5 (not requiring organizational policyelement 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,

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Even the definition of genocide, the crime spawned by theHolocaust, 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-ocide conviction-a lone madman can be convicted of genocide. 84

This expansive view of the crime led the ICTY to conclude contro-versially that genocide was committed in the city of Srebrenica eventhough there was little evidence of a plan or policy to destroy a groupin whole or in part. 85

In holding the Srebrenica massacre to be genocide, the ICTYjudges appear to have expanded the meaning of genocide in anotherway 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, whichthe judges describe as an "unspeakable human evil." 87 In anotherjudgment, the ICTY further expanded the scope of genocide by hold-ing that it can be committed when there is only forcible transfer of apopulation, rather than its physical destruction. 88

2002) (sustaining convictions of defendants convicted of crimes against humanity forrepeatedly raping women even though there was no evidence of state plan or policy behindthe acts, stating "neither the attack nor the acts of the accused needs to be supported by anyform of 'policy' or 'plan"'); Schabas, supra note 32, at 960 (discussing the KunaracJudgment and its elimination of plan or policy element).

84. Prosecutor v. Jelisic, Case No. IT-95-10-A, Judgment, 1 48 (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 FormerYugoslavia 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, CaseNo. IT-02-60-A, Judgment (Int'l Crim. Trib. for the Former Yugoslavia May 9, 2007)). Inhis discussion, Schabas notes that the ICTY concluded that the massacre at Srebrenica waspart of a "plan" formulated by a State or quasi-state entity. Id. However, Schabas goes onto note that the evidence actually presented in the Srebrenica cases failed to establishanything approaching a state plan or policy; instead, the evidence showed that the executionplan was a last-minute, hastily organized action, created and implemented by a singlegeneral and his closest cohorts. Id. at 958.

86. William A. Schabas, Genocide, Crimes Against Humanity, and Dar/uir: TheCommission 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. forthe Former Yugoslavia Aug. 2, 2001).

88. Prosecutor v. Blagojevic, Case No. IT-02-60-T, Judgment, 665 66 (Int'l Crim.

2012]


Although the ICC judges have yet to rule on the meaning ofgenocide, some have criticized their decision to allow genocidecharges against Sudanese president Al Bashir as contemplating a lowevidentiary threshold for the specific intent requirement of thecrime. 89 These developments at the ICTY and ICC evidence a ten-dency to include within the definition of genocide crimes that are lessserious than the crimes previously given that label.

The contours of international criminal law's subject matterhave also been developing through the actions of the ICC prosecutor.Luis Moreno-Ocampo, the Court's first prosecutor, took a generallybroad view of the types of situations that the Court can investigateand 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 insufficientgravity in only one situation: the war crimes of British soldiers inIraq. 90 In all others, the prosecutor either opened an investigation orleft unresolved the question of exercising jurisdiction either by lettingthe matter simmer at the "preliminary examination" stage or remain-ing silent. Moreover, the Office of the Prosecutor has articulated apolicy of opening a "preliminary examination" of any situationbrought to its attention by any source. 91

Of the fourteen situations the Prosecutor's office is currentlyprosecuting, 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 ofPresident 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 thatthree alleged target "tribes" were not distinct ethnic groups and UNCOI determined that

attacks against civilian populations were part of a counter-insurgency campaign and notreflective 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. Ocampohas also indicated the reason he prioritized the crimes of the LRA over those of thegovernment forces in Uganda was that the former were more serious. Statement by LuisMoreno-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_20051024_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

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more limited scope of harm than that addressed by prior internationaltribunals. One situation in South Korea concerns the shelling of anisland that resulted in the death of four people 93 and the sinking of awarship that killed forty-six. 94 Another situation pertains to a coupd'etat in Honduras that caused six deaths and two instances of sexualviolence. 95 The situation in Guinea involved dozens of rapes and be-tween 150 and 200 killed.96 Given that these situations remain at thepreliminary examination stage, the prosecutor may yet conclude thatthey 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 expansiveapproach to the exercise of international jurisdiction. Moreover, intwo of the situations where the Court has opened an investigation-Libya and Kenya-the numbers of people directly harmed are alsosignificantly lower than in situations that had previously beendeemed legitimate subjects of international criminal adjudication. 97

seventeen situations, that number includes those that have led to the opening ofinvestigations (Uganda, DRC, CAR, Darfur, Kenya, Cote d'Ivoire and Libya), and those

dismissed (Venezuela, Iraq and Palestine). See OTP-ICC, Communications, Rejerrals andPreliminary 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 theTerritory of the Republic of Korea under Preliminary Examination (Dec. 6, 2010), availableat http://www.icc-cpi.int/menus/icc/press / 20and /"20media/press / 20releases/press /"20releases%20(2010)/pr608 (describing investigation for shelling of Yeonpyeong); see also SeoYoonjung & 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, andImpunity in Honduras, HUMAN RIGHTS WATCH, 12, 15 (2010), available athttp://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%20examination ("[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: TheSeptember 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 inover 1,000 killings, almost 1,000 rapes and between 3,000 and 4,000 acts of serious injury),

2012]


Finally, as already mentioned, the U.N. Security Council cre-ated the Lebanon Tribunal to adjudicate the killing of essentially oneperson. 98 While the number of victims is but one indicator of gravi-ty, neither the prosecutor nor anyone else has attempted to argue thatthese situations are as serious as their predecessors by, for example,referencing other potential indicators of gravity such as the broaderimpact 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 thatliability for international crimes can be based on participation withothers in a common criminal purpose. 99 The idea of such commonpurpose liability is not in itself remarkable since it is found in manycriminal justice systems, but the ICTY judges went further, assertingthat common purpose liability extends to the foreseeable crimes ofco-conspirators-the so-called "extended" form of JCE or JCEThree. 100

and Decision on the "Prosecutor's Application Pursuant to Article 58 as to MuammarMohammed 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) (statingthat although precise figures were unavailable, it was believed that in the first two weeks ofFebruary, hundreds of civilians were killed, hundreds more were injured and hundreds morewere arrested by Libyan Security Forces), with Press Release, ICC-OTP, The Office of theProsecutor 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 ofcivilians have died" from conflict in Democratic Republic of Congo) and U.N. Dep. Of Pub.Info., The United Nations and Dartur Fact Sheet, U.N. INFORMATION SERVICE (Aug. 2007),available at http://www.unis.unvienna.org/pdf/UN-Darfur fact sheet.pdf (estimating over200,000 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 "atribunal of an international character to try all those who are found responsible for theterrorist 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 theFormer Yugoslavia July 15, 1999); Allison M. Danner & Jenny S. Martinez, GuiltyAssociations: Joint Criminal Enterprise, Command Responsibility, and the Development ofInternational Criminal Law, 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.

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This mode of liability, although permitted in some nationalsystems,' 0 ' has been widely criticized as departing from well-accepted principles of culpability. 102 Under JCE Three, a defendantwho shared in a criminal purpose can be convicted of a vast numberof crimes flowing from that purpose even if the defendant was com-pletely unaware of the crimes themselves. Additionally, the commoncriminal purpose is often defined in very general terms, 10 3 whichmeans that a defendant can be convicted of a crime requiring a highlevel of culpability such as genocide without possessing the requiredspecific intent. 104

Indeed, the doctrine has the effect of lowering the mens reafor many international crimes to recklessness or, in some situations,negligence. 105 In adopting this doctrine, the ICTY judges appealed tothe gravity of the crimes within their mandate. They reasoned thatthe 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 participatedin the perpetration of those violations." 106

Although JCE originated with the ICTY, it is now widely ap-plied by international courts and a related doctrine is available to theICC. 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 allmembers of a consipiracy).

102. Darryl Robinson, The Identity Crisis of International Criminal Law4, 21 LEIDEN J.INT'L L. 925, 939 (2008).

103. See Danner & Martinez, supra note 99, at 107-09 (describing expansive definitionoften 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, 1 1 189-190 (Int'l Crim. Trib.For the Former Yugoslavia July 15, 1999). See also Danner & Martinez, supra note 99, at132 (noting that the Appeals Chamber essentially determined that punishment should extendto all those who have "perpetrated especially serious violations of victims' human rights,since all of the crimes within international criminal law constitute serious violations ofinternational 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 Cambodiarecently rejected the doctrine on the grounds that it was not part of customary internationallaw at the time the Khmer Rouge crimes were committed. See Decision on the Appeals

2012]


tions rely on this theory of liability. 108 In a particularly controversialdecision, the Special Court for Sierra Leone convicted defendantsbased on a JCE theory even though the common purpose was notcriminal. 109 The judges held that it was sufficient that the defendantscontemplated committing crimes as a means of obtaining the legalobjective 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 commissionof crimes.

Another controversial form of liability that internationalcourts apply permits conviction of superiors who knew or shouldhave known their subordinates had committed or were committingcrimes 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 atheory 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 74of 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 liabilityrequires the existence of an agreement or common plan between two or more persons that, ifimplemented "will result in the commission of the relevant crime in the ordinary course ofevents" and an essential contribution to the common plan by the accused that resulted in thecommission 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, thecriminal consequences "will occur in the ordinary course of events" and that he provided anessential 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, 2004explicitly relied on JCE and 81% relied on it implicitly). Turner went on to note that as ofDecember 2007, 48% of all ICTY indictments explicitly relied on JCE. Id. At the ICTR, asof December 2007, though only thirteen out of eighty-five indictments were grounded inJCE, 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, AppealsChamber, Judgment, 80-82 (Feb. 22, 2008). Commentators have criticized the SCSL forextending the doctrine this far. See Wayne Jordash & Penelope Van Tuyl, Failure to Carrythe Burden of Proofi How Joint Criminal Enterprise Lost its Way at the Special Court./brSierra Leone, 8 J. INT'L CRIM. JUST. 591, 603 (2010).

110. Prosecutor v. Brima, Kamara & Kanu, Case No. SCSL-2004-16-A, AppealsChamber, Judgment, 80 (Feb. 22, 2008) (reasoning "that the requirement that the commonplan, design or purpose of a joint criminal enterprise is inherently criminal means that itmust either have as its objective a crime within the Statute, or contemplate crimes within theStatute as the means of achieving its objective").

111. See, e.g., Rome Statute, supra note 2, art. 28.

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part on the grounds that they had a duty they failed to perform. Suchliability for omissions is controversial and generally requires at leastrecklessness on the part of defendants,' 12 yet some internationalcourts have extended the doctrine, suggesting that even negligentfailures 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 oromissions that aid or abet crimes. 114 International courts have alsoextended this theory beyond military superiors to civilian leaders. '15Commentators have thus expressed concern that international courts

112. See Danner & Martinez, supra note 99, at 121 ("Liability for serious crimes basedon 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) (citingpost-World War 1i cases in which courts appeared to establish negligent failure to obtainknowledge 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, theInternational 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 toprevent the commission of such crimes in the future," or "should, but for negligence orsupineness, have had such knowledge .... " Id. at 652 (citing 20 THE TOKYO WAR CRIMESTRIAL, 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 (imposingcriminal 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 commandand 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, JointCriminal 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. ICTR95-1-T, Judgment, 1 1 213-16 (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).

2012]


may be basing convictions for crimes that are considered especiallyheinous on the lowest form of culpability.' 16 Such convictions reflecta dilution of the culpability aspect of gravity.

In sum, there is ample evidence that international criminallaw has expanded since its inception, largely in a direction of dimin-ished gravity, however that concept is understood. Ironically, due toits malleability, the concept of gravity has often been employed tojustify the very doctrines that tend to dilute the gravity of internation-al crimes.

B. Predicting Continued Expansion

Many of the judicial developments discussed above reflect thework of the ICTY and, to a lesser extent, the ICTR. Indeed, theICTY claims as one of its accomplishments that it has "expanded theboundaries of international humanitarian and international criminallaw." 117 Now that the ad hoc tribunals are completing their workone might be tempted to conclude that such expansion will diminishor even stop. But there are reasons to predict continued growth: spe-cifically, the broad goals international criminal courts seek to pursueand the professional and institutional incentives operating at suchcourts. Unless political actors curtail expansion by, for example, im-posing a narrow definition of the gravity required for internationaladjudication, these forces are likely to continue to push internationalcourts 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 tobe an instrument of deterrence and prevention, peace and reconcilia-tion, retribution, and restorative justice. 118 Deterrence or, morebroadly, 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 Criminal Defense,10 CHI. J. INT'L L. 685, 691 n.15 (2010); Ralph Henham, The Philosophical Foundations ofInternational Sentencing, I J. INT'L CRIM. JUST. 64, 74, 80 81 (2003); Jean Galbraith, ThePace 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 AlternativeJustice Mechanisms, 23 CONN. J. INT'L L. 209, 265 (2008).

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Court. 119 But what is the Court supposed to try to prevent? Certainlyit is intended to prevent crimes as serious as the atrocities that moti-vated its creation-the Holocaust, the Rwandan genocide and ethniccleansing in the former Yugoslavia in particular.

But why stop there? If international prosecution can preventeven a small number of killings, why not include such killings in itsjurisdiction? Without a clear conceptual or doctrinal limitation,whether in the form of gravity or otherwise, the goal of preventingcrimes 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 orsystematic" elements of crimes against humanity.

Likewise, if international prosecutions can serve to promotepeace and to reconcile communities, it makes sense to stretch doc-trines to include any prosecutions necessary to accomplish thesegoals. For example, since many people believe reconciliation re-quires prosecuting both sides of a conflict even when one side hascommitted significantly less serious crimes, 120 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 howserious. Through exemplary prosecutions of the various types ofcrimes committed, such courts can attempt to restore large numbersof victims despite the inability of such courts to prosecute large num-bers of perpetrators. 121

Moreover, the ICC does not merely seek to accomplish thesegoals 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 criminaljustice is a goal of the ICC"); Mirjan Damagka, What is the Point of International CriminalJustice?, 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 mustinvolve showing that the rule of law does not discriminate for or against anyone. TheTribunal'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 thatretribution exacted from a few individuals will promote group reconciliation.").

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tional courts to prosecute. 122 This vision of the ICC's complementa-rity function also encourages a broad view of its jurisdiction since theobligation of national governments to prosecute is not restricted towar crimes, crimes against humanity and genocide. Instead, humanrights 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 forceddisappearances. 123 That court has even gone so far as to order statesto take particular steps to fulfill this obligation. 124 The Europeanhuman rights system, though more deferential to national govern-ments in terms of compliance, has also seen an increase in efforts toensure national prosecutions of human rights violations. 125 Positivecomplementarity therefore suggests that the ICC should interpret itsjurisdiction broadly to encourage national prosecutions of as manycrimes 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 itsprimary actors. Many judges and prosecutors at international courtsview 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 bebrethe 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 thedisappearance of Manfredo Velasquez and bring charges against anyone responsible for hisdisappearance"); El Amparo v. Venez., Reparations and Costs, Inter-Am. Ct. H.R. (ser. C)No. 28, 1 64 (Sept. 14, 1996) (unanimously deciding that Government of Venezuela mustcontinue investigations into deaths of several individuals allegedly killed by state police ormilitary personnel and punish those responsible); Fernando Felipe Basch, The Doctrine of

the Inter-American Court of Human Rights Regarding States' Duty to Punish Human RightsViolations and Its Dangers, 23 AM. U. INT'L L. REv. 195 (2007).

124. See David C. Baluarte, Strategizing ./br Compliance: The Evolution ?f aSupervising Compliance Phase of Inter-American Court Litigation and the StrategicImperative.Ibr Victims' Representatives, AM. U. INT'L L. REV. 263 (2012).

125. Alexandra Huneeus, International Criminal Law by Other Means: The Quasi-Criminal Jurisdiction of the Human Rights Courts, 107 AM. J. INT'L L (forthcoming 2013)(draft on file with author).

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fication for these jobs. 126 This is not surprising since internationalcriminal law grew out of the human rights movement.

As Darryl Robinson has persuasively argued, the humanrights-promoting identities of the regime's actors have fostered anexpansionist approach to international criminal law. 127 Indeed, hepoints out that the human rights agenda not only helps to explain whyinternational criminal law shows expansive tendencies, it provides ameans for such expansion.' 28 Judges justify expansive doctrinesthrough interpretive approaches borrowed from the human rightscontext and conflate human rights norms with international criminallaw norms. 12 9

International prosecutors and judges are also connected tohuman rights advocacy networks that influence their work. 130 Suchnetworks often push strongly for expansion. For example, activistsand politicians have labeled a variety of activities "crimes againsthumanity," including the failure to reduce greenhouse gas emissionsand 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 International Criminal Justice System?, in WHO GOVERNS THE GLOBE?37 (Deborah D. Avant, Martha Finnemore & Susan K. Sell, eds., 2010) ("[F]t appears thatgovernments have arrived at a common understanding of what the background for aninternational criminal judge should be: a national-level appellate judge with extensiveinternational 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 International Judges, 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 militaryorganizations, police departments and justice systems accountable for their violations offairness and justice. Now, as judges on international criminal courts, they can findthemselves pressured by erstwhile colleagues to give primary attention to the rights ofvictims, 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 oilexecutives of committing crimes against humanity and nature for stonewalling on thereduction of greenhouse gas emissions); see also Grant Ferrett, Biolels 'Crime AgainstHumanity', 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 crimeagainst humanity). See generally Peter Sharp, Prospects for Environmental Liability in theInternational Criminal Court, 18 VA. ENVTL. L.J. 217 (1999) (discussing prospects of, andarguing for, inclusion of environmental crimes within ICC's jurisdiction as genocide, crimes

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sive interpretations of crimes against humanity to include opportunis-tic harms perpetrated by individuals, such as violence against femaleforced migrants and crimes by peacekeepers. 132 Such efforts un-doubtedly influence actors at international courts at least some of thetime. For example, Moreno-Ocampo's decision to seek a genocidecharge against President Bashir in the face of significant expert opin-ion that the conflict in Darfur did not meet the legal requirements ofthe crime 133 was likely affected by the many advocacy efforts to labelthe Darfur situation "genocide." 134

In addition to their identification with the human rightsmovement, international judges and prosecutors experience variousincentives to interpret their mandates broadly. First, there are emo-

against humanity, and/or war crimes); Amir Attaran, Roger Bate & Megan Kendall, Whyand Howt to Make an International Crime 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, ForcedMigration, and International Criminal Law, 11 INT'L CRIM. L. REV. 463 (2011); see alsoMelanie O'Brien, Prosecuting Peacekeepers in the ICC for Human Trafficking, I

INTERCULTURAL HUM. RTS. L. REV. 281, 283, 327 (2006) (suggesting that the commission bypeacekeepers of crimes such as trafficking, forced prostitution, rape and sexual slaveryshould be prosecutable under Article 7 of the Rome Statute, but concluding that theseoffenses are unlikely to fall within the ICC's subj ect-matter jurisdiction).

133. See Interview by Zachary Manfredi & Julie Veroff [ICC Observers Project] withWilliam A. Schabas, Professor of Human Rights Law and Director of the Irish Centre forHuman Rights, National University of Ireland, Galway (Mar. 26, 2009), available athttp: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 onDar/ir to the UN Secretary-General, 4 (2005) (stating that the Sudanese government has notpursued a policy of genocide because "the crucial element of genocidal intent appears to bemissing"), available at http://www.un.org/news/dh/sudan/cominq-darfur.pdf.

134. See Michael J. Kelly, The Debate Over Genocide in Dart ur, Sudan, 18 U.C. DAVISJ. INT'L L. & POL'Y 205, 213, 217 (2011) (indicating that the United States had earlierlabeled 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'LCRIM. JUST. 829, 830 (2008) (suggesting that, given the ongoing debate as to whether theevents actually amounted to genocide, it was external pressures, rather than Ocampo's ownjudgment, 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 ongenocide").

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tional incentives. Faced with defendants who have killed, raped, ortortured others and the knowledge that an acquittal means likely im-punity judges are understandably tempted to stretch the definitions ofcrimes 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 prosecutorabhors a vacuum. Given a statutory grant of jurisdiction, he will seekto bring within it any offense he finds unattended or even, in hisview, inadequately attended." 138

These incentives, along with the broad goals of internationalcourts, will likely continue to foster the expansion of internationalcriminal 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 thebroader debates about the value of the regime. Those debates tend torevolve 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 andJudgments of "Responsibility": A Meta-Analytical Review, 30 J. APPLIED SOC. PSYCHOL.2575 (2000); J. Lucas, C. Graif & M. Lovaglia, Misconduct in the Prosecution of SevereCrimes: 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 someEuropean countries. William A. Schabas, Independence and Impartiality of the

International Criminal Judiciary, in FROM HUMAN RIGHTS TO INTERNATIONAL CRIMINALLAW: 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!internationalJudicial Appointments, 9 CHI J. INT'L L. 387, 393 94 (2009).

138. Charles F.C. Ruff, Federal Prosecution (ofLocal Corruption: A Case Study in theMaking ofLaw Enfbrcement Policy, 65 GEO. L.J. 1171, 1228 (1977).

139. See, e.g., Payam Akhavan, Beyond Impunity: Can International Criminal JusticePrevent 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

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democratic 140 and counter-productive. 141 The regime's expansion istherefore 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 theexpansion of the regime raises concerns related to both sovereigntyand defendants' rights that should worry even its most ardent sup-porters. When international courts adjudicate marginal situations andcases they may unjustifiably privilege the international community'sinterest in accountability over states' interests in exclusive authorityand defendants' interests in fairness.

A. Expansion's Consequences for Sovereignty

International criminal law comes into conflict with state sov-ereignty in several ways. First, and most importantly, it sometimespermits criminal prosecutions despite the objection of the stateswhere 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) (discussingpotential deterrent effect of ICTY arrests and trials).

140. See, e.g., Madeline Morris, The Democratic Dilemma of the International Criminal

Court, 5 BUFF. CRIM. L. REV. 591, 596 (2002) ("What, then, about non-party states'? What isthe democratic basis for the ICC's power as applied to populations whose states have notconsented 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 orExacerbate Human Atrocities?, 84 WASH. U. L. REV. 777, 817 831 (2006) (claiming that theprospect 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) ("Whensovereignty appears in international criminal law scholarship, it commonly comes clothed inhat 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 ofdemocratic nations"). But see Cryer, supra note 142, at 986-987 (arguing that while ICL'ssubstantive norms may chill sovereignty, they also jurisdictionally empower states).

144. See in/ra notes 152-155 and accompanying text.

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courts. 145 Third, international courts do not respect the immunity ofsovereigns 146 or apply amnesties adopted under domestic law. 147 Fi-nally, there is some authority suggesting that international courts canexercise jurisdiction over defendants abducted from non-compliantstates under the theory of male captus bene detentus.148 In justifyingthese practices, judges and prosecutors explicitly or implicitly rely onthe gravity of the crimes at issue.

The conflict between accountability and sovereignty is mostdramatic when the ICC adjudicates a situation in the territory of anobjecting non-party state. 149 When the Court acts in a situation in-volving an objecting state party the tension between these values isless 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-electedrepresentatives of a political community.

Thus far, the ICC has proceeded in three situations over theobjection of the states where the crimes occurred: Kenya (a state par-ty), Sudan and Libya (non-party states). In each case, the prosecutorand judges invoked the gravity of the situation to justify the decisionsto proceed without engaging in substantial analysis or balancingcompeting interests. 151

145. Rome Statute, supra note 2, art. 89 (state parties shall comply with ICC requestsfor arrest and surrender); ICTY Statute, supra note 144, art. 29 (states shall comply withrequests for assistance issued by a trial chamber of the ICTY, including the arrest ordetention of persons); ICTR Statute, supra note 144, art. 28 (states shall comply withrequests for assistance issued by a trial chamber of the ICTR, including the arrest ordetention of persons); see also Zhu Wenqi, On Co-operation by States Not Party to theInternational Criminal Court, 88 INT'L REV. RED CROSS 87, 108 (2006) (claiming thatcooperation with the ICC by both party and non-party states is now obligatory due tocustomary international law).

146. ICTR Statute, supra note 14, art. 6(2); ICTY Statute, supra note 14, art. 7(2);Rome Statute, supra note 2, art. 27.

147. See, e.g., Prosecutor v. Kallon, Case No. SCSL-04-15-AR72(E), Decision onChallenge to Jurisdiction: Lom& Accord Amnesty, 167 (Mar. 13, 2004).

148. Under this doctrine, a defendant may be detained and tried even though thedefendant's capture was illegal. Prosecutor v. Nikolic, Decision on Interlocutory AppealConcerning Legality of Arrest, Case No. IT-94-2-PTAR73, 111 24, 26 (Int'l Crim. Trib. forthe Former Yugoslavia June 5, 2003).

149. See Morris, supra note 1400 (explaining how ICC efforts to extend jurisdictionover 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

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The determination that the Darfur situation was sufficientlyserious for international adjudication was uncontroversial given thescope of atrocities there, which some commentators had labeled gen-ocide. The matter was somewhat more complex for Libya where thenumbers killed were estimated to be in the hundreds, but the decisionwas bolstered by Gaddafi's threats to commit additional crimes. 152

The appropriateness of international adjudication is mostquestionable in the Kenya situation, which involved a relatively briefepisode of post-election violence. The numbers harmed were muchlower 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 assertsthat it intends to pursue national prosecutions as soon as the relevantinstitutions can be put in place. 155 Indeed, the government of Kenyahas established a truth commission that investigated the crimes. 156

Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation inthe Republic of Kenya, 197 200 (Mar. 31, 2010) (performing brief gravity analysis thatmentioned 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 focusingon involvement of political and business leaders in post-election crimes); Press Release,ICC-OTP, ICC Prosecutor Presents Case Against Sudanese President, Hassan Ahmad AlBashir, 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 thedestitution, insecurity and harassment of the survivors. He did not need bullets. He usedother weapons: rapes, hunger, and fear. As efficient, but silent.").

152. Decision on the "Prosecutor's Application Pursuant to Article 58 as to MuammarMohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi,"Situation in the Libyan Arab Jamahiriya, Case No. ICC-01l11, 11 94 (June 27, 2011)(concluding that Gaddafi's arrest was necessary to "prevent him from continuing to use hispower 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 peopleharmed 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 toArticle 15 of the Rome Statute on the Authorization of an Investigation into the Situation in

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 onBehalf 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

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The Kenya situation thus illustrates the sovereignty problemsthat 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 andprosecute the crimes (or perhaps choose an alternate path such as atruth commission) should have outweighed the international interestin ICC prosecution. Such conflicts between the interests of sovereignstates and those of the international community in international pros-ecution will increase in intensity if the expansion of internationalcriminal law discussed above continues.

The conflict with sovereignty also arises when internationalcourts invoke the concept of gravity to reject defenses based on sov-ereign immunity. In explaining the decision to deny former Liberianpresident Charles Taylor immunity, the SCSL relied in part on "thenature of the offenses for which jurisdiction was vested in these [adhoc international] tribunals"-an implicit reference to gravity. 157 AsCharles Jalloh has written, the Taylor decision is seen as proof thatthe "long arm of international criminal law [can] extend to reach themost powerful state official, so long as that person commits crimesthat shock the conscience of the international community." 158

In rejecting a similar claim in the case of former Yugoslavpresident Milosevic the ICTY quoted the House of Lords' decision inthe Pinochet case that "[i]n future those who commit atrocitiesagainst civilian populations must expect to be called to account iffundamental human rights are to be properly protected." 159 The anti-immunity doctrine is thus rooted in the widely accepted view that noone should be exempt from punishment for the sorts of crimes thathave 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 fromJurisdiction, 1 49 (May 31, 2004) ("The nature of the offences for which jurisdiction wasvested in these various tribunals [i.e. the ICTY, ICTR, ICC, and Tokyo and NurembergInternational Military Tribunals] is instructive as to the circumstances in which immunity iswithheld.").

158. Charles Jalloh, Immunity from Prosecution for International Crimes: The Case ofCharles 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, 1133 (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 haveimplicitly 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).

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human rights abuses often labeled "atrocities."As the subject matter of international courts expands, howev-

er, it becomes less clear that accountability should trump concernsrelated to international order. As the ICJ has explained, sovereigntyimmunity is rooted in the need for state officials to be able to performtheir 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 officialis suspected of committing genocide or other widespread humanrights abuses, the value of enabling that person to conduct state busi-ness pales in comparison to the need to hold them accountable fortheir crimes.

The balance may tip the other way for less serious crimes,however. Imagine, for example, a head of state accused of superiorresponsibility for a single war crime of disproportionately destroyingenemy property. Assuming the state is a party to the ICC Statute andthe other jurisdictional requirements are met, the Court may adjudi-cate the crime. But it is far from clear that the ICC should adjudicatethe crime rather than respecting the state's right to conduct its busi-ness through its elected representatives. In general, then, as gravitydecreases, 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, 161 international law increasingly supports the view that amnestyis not permitted for international crimes and that when national sys-tems grant such amnesties, international courts will ignore them. 162

The anti-amnesty norm limits state sovereignty by constraining thetools available to political leaders seeking to transition from conflictsand represents a significant shift from long-standing state practice.As Ronald Slye points out, "[a]mnesties of one form or another havebeen used to limit the accountability of individuals responsible forgross violations of human rights in every major political transition inthe 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 International Law and GeneralPrinciples of Anglo-American Law: Is a Legitimate Amnesty Possible?, 43 VA. J. INT'L L.

173, 178 (2002).

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states have an obligation to prosecute perpetrators of internationalcrimes. 164

Courts applying the anti-amnesty norm rely heavily on thegravity of international crimes as justification. Thus, for example,the SCSL has held that there is a "crystallizing international normthat a government cannot grant amnesty for serious violations ofcrimes 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 theGenocide Convention, require states to prosecute internationalcrimes. 166 Moreover, while the court recognized that "the grant ofamnesty or pardon is undoubtedly an exercise of sovereign power," itheld 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 bygrant of amnesty. It is for this reason unrealistic to re-gard as universally effective the grant of amnesty by aState in regard to grave international crimes in whichthere exists universal jurisdiction. 167

In a similar decision, the ECCC refused to respect a pardongranted to one of its defendants. 168 Again, the court relied on thegravity of the crimes to justify its decision. It stated: "Cambodia...continues to have an obligation to ensure that victims of crimesagainst humanity which, by definition, cause serious violations ofhuman rights, were and are afforded an effective remedy." 169 TheU.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 effectiveprosecution must be ensured by taking measures at the national level and by enhancinginternational cooperation.").

165. Prosecutor v. Kallon, Case No. SCSL-04-15-AR72(E), Decision on Challenge toJurisdiction: 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 Transitional Justice and the Rule of Lalv inConflict 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.

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Like the denial of immunity in international courts, the ex-pansion of international crimes raises concerns about the tendency ofsuch 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 increasinglyproblematic 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 failedadequately to abide by the principles of proportionality and distinc-tion. Although such crimes are within the jurisdiction of the ICC, itis 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 notallow states to abduct residents of other states, even those who havecommitted crimes. Nonetheless, the ICTY Appeals Chamber appliedthe 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 AppealsChamber 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 notapprehending fugitives accused of serious violationsof international humanitarian law is comparativelyhigher 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 theState's cooperation. Therefore, the Appeals Chamberdoes not consider that in cases of universally con-demned offences, jurisdiction should be set aside onthe ground that there was a violation of the sovereign-ty of a State when the violation is brought about bythe 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 AppealConcerning Legality of Arrest, 24, 26 (Int'l Crim. Trib. for the Former Yugoslavia June5, 2003). The U.S. Supreme Court upheld this rule in Alvarez-Machain v. United States, 504U.S. 655 (1992).

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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 fromArgentina partially on the grounds that he was charged with "crimesof an universal character ... condemned publicly by the civilizedworld." 174

Similarly, in Barbie, the French Court of Cassation assertedjurisdiction over the defendant partially because of the "special na-ture of the crimes ascribed to the accused, namely, crimes againsthumanity." 175 Thus, the ICTY Appeals Chamber identified the seri-ousness of genocide, crimes against humanity and war crimes as acognizable basis for refusing to set aside jurisdiction in forcible ab-duction cases. 176

The Nikolic judgment has been criticized for elevating theprosecution of "core international crimes" above other considera-tions, such as abuse of process. 177 This concern is magnified if oneconsiders 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 notbe true for those who commit isolated crimes or crimes that inflictrelatively minor harms.

B. Increased Risk 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 AppealConcerning 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. 71 24. The ICTY Appeals Chamber may have misconstrued the Eichmann andBarbie courts' invocation of the nature of the alleged offenses in their respective cases. InRobert Currie's view, the courts looked to the seriousness of the crimes in question to justifytheir exercise of substantive, not personal, jurisdiction over extra-territorial offenses. RobertJ. Currie, Abducted Fugitives Be/ore the International Criminal Court: Problems andProspects, 18 CRIM. L.F. 349, 370 (2007).

177. E.g., Currie, supra note 176, at 356, 370 (describing this expansion of internationalcriminal law as "truly break[ing] new ground").

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legal rules that protect defendants. Indeed, a Latin maxim holds that"in delictis atrocissimus jura transgredi liceat" (with atrociouscrimes, legal rules can be relaxed). 178 Thus, for example, courts haveinvoked gravity to reject defenses based on the principle of legality-or nullum crimen sine lege. 179 That principle is designed to providenotice to defendants of the types of conduct that are punishable andthus 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 issuewere so serious that the defendants should have known of their ille-gality. For example, in the Tadic case, the ICTY Appeals Chamberstated that defendants could be held liable under the newly mintedtheory of joint criminal enterprise because "the moral gravity of suchparticipation is often no less-or indeed no different-from that ofthose actually carrying out the acts in question." 180 Similarly, whendefendants at the ICTR objected that applying the new doctrine in thecontext of internal armed conflicts violated the principle of legality,the trial chamber replied that "any potential perpetrator was able tounderstand 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 theordinary rules go out the window.").

179. See, e.g., NUREMBERG, supra note 20, at 444 ("[I]t is to be observed that themaxim 'nullum crimen sine lege' is not a limitation on sovereignty, but is in general aprinciple of justice. To assert that it is unjust to punish those who in defiance of treaties andassurances have attacked neighbouring States without warning is obviously untrue, for insuch circumstances the attacker must know that he is doing wrong, and so far from it beingunjust 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 onDragoljub Ojdanic's Motion Challenging Jurisdiction: Joint Criminal Enterprise, 111137-42(Int'l Crim. Trib. for the Former Yugoslavia May 21, 2003) (rejecting defense of nullumcrimen sine lege, in part, because of grievous nature of accused's actions). See VanSchaack, 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 theFormer Yugoslavia July 15, 1999).

181. Prosecutor v. Karemera, Case No. ICTR-98-44-T, Decision on the PreliminaryMotions by the Defence of Joseph Nzirorera, Edouard Karemera, Andre Rwamakuba andMathieu Ngirumpatse Challenging Jurisdiction in Relation to Joint Criminal Enterprise, 44(May 11, 2004).

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The SCSL used similar reasoning in convicting defendants retroac-tively of the newly codified crimes of enlisting child soldiers andforced marriage. 182

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 thatdefendants are not deprived of notice because international crimesgenerally have analogues in national law. 183 She argues that defend-ants are not prejudiced as long as courts follow national sentencingpractices for analogous crimes. 184 But as international criminal lawexpands it increasingly reaches conduct that is not criminal in mostdomestic systems including, for example, the crime of enlisting childsoldiers and liability under the expanded theory of joint criminal en-terprise. 185 Indeed, Kai Ambos has argued that the ICTY's expansiveinterpretation of superior responsibility has denied defendants fairnotice of the law. 186 Moreover, as Shahram Dana has noted, interna-tional sentences do not always comport with national practice. 187 Fi-nally, even when a domestic analogue exists, international convictionmay 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 courtstend to apply a standard of proof below the conventional "beyond areasonable doubt." Professor Nancy Combs conducted a large-scalereview of transcripts from proceedings at the ICTR, SCSL and Spe-cial Panels for East Timor and discovered that those courts routinelyconvict defendants on the basis of highly unreliable evidence. 188 Inparticular, such convictions often rest on witness testimony that isriddled with inconsistencies. Combs presents evidence that over fifty

182. Prosecutor v. Brima, Kamara & Kanu (AFRC Case), Case No. SCSL-04-16-A-675,Judgment, 1111 175-86, 293-97 (Feb. 22, 2008); see also Micaela Frulli, AdvancingInternational Criminal LaI: The Special Court for Sierra Leone Recognizes ForcedMarriage as 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 ThePrinciple 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).

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percent of prosecution witnesses at these courts testified in ways thatwere inconsistent with their pre-trial statements. 189 In fact, her find-ings suggest that a shockingly high number of such witnesses may belying. 190 Combs concludes that the reliance of international courts onsuch questionable evidence indicates they are applying a burden ofproof lower than "beyond a reasonable doubt." 191

Although clearly concerned about the implication of her find-ings for defendants' rights, Combs nevertheless suggests that thelower burden of proof at international courts may be acceptable whensuch courts convict leaders of organizations committing seriouscrimes. 192 Proof of leadership in a criminal organization responsiblefor 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 notlimit 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 internationaljudges become accustomed to applying loose standards of proof thereis 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 aresubject to lengthy pre-trial detention and denied provisional releasein 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 toArticle 15 of the Rome Statute on the Authorization of an Investigation into the Situation inthe 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 inadvance, I fail to see the existence of an 'organization' behind the violent acts which mayhave established a policy to attack the civilian population within the meaning of article7(2)(a) of the Statute."). Moreover, at least for the ICC, there are good reasons to argue thatthe exercise of jurisdiction should not be limited to leaders of criminal organizations. Seegenerally deGuzman, Choosing to Prosecute, supra note 10 (arguing that the ICC's focusshould be on expressing moral norms through a small number of illustrative prosecutions).

194. See Caroline L. Davidson, No Shortcut on Human Rights: Bail and theInternational Criminal Trial, 60 AM. U. L. REV. 1,33 34 (2010).

195. Id. at 33. See also Johan David Michels, Compensating Acquitted Dqendants brDetention 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

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Damagka has written that such "departures by international criminaltribunals from domestic standards of fairness" may be justified inpart by "the atrocity of crimes they process." 196 Damagka's stance ispremised on his view that the jurisdiction of international courts "isreserved for some of the most horrendous crimes imaginable, and...these tribunals are specifically charged with ending the impunity ofthe most responsible perpetrators of these crimes." 197 As this paperhas sought to demonstrate, however, international criminal jurisdic-tion is not as limited as Damagka presumes, and is likely to expandfurther in the future. As such, ambiguous invocations of gravity tojustify incursions on defendants' rights are becoming increasinglyproblematic.

International criminal law's expansion since Nuremberg andits likely continued expansion thus raise concerns about whether theregime adequately respects the sovereignty interests of states and thefairness interests of defendants.

CONCLUSION

International criminal law is expanding in ways that potential-ly undermine legitimate sovereignty and individual interests. This isin part because judges and prosecutors employ gravity imprecisely tojustify expansive doctrines and practices. With little or no analysis,they declare crimes grave and thus "international," admissible beforethe ICC or exempt from the usual rules protecting state or individualinterests. 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 thisphenomenon. International criminal law has always been marked bya tension between, on the one hand, international interests-particularly the need for accountability to promote human rightsnorms-and, on the other hand, sovereignty interests. Gravity has

Release Filed by the Accused Zejnil Delalic, 20 (Int'l Crim. Trib. for the FormerYugoslavia Sept. 25, 1996)). In Delalic, the ICTY trial chamber stated that "both thegravity of the offences charged and the unique circumstances in which the InternationalTribunal operates justify the shifting of the burden to the accused and the requirement thathe 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 theAccused 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 forInternational Criminal Tribunals, 36 N.C. J. INT'L L. & COM. REG. 365, 380 (2011).

197. Id. at 370.

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been a convenient tool for mediating this tension. Thus, for example,the international community used gravity's ambiguity to build theconsensus needed to create the ICC.

In many past situations the ambiguity of "gravity" was notproblematic because most people agreed that the balance tippedstrongly in favor of accountability. As the international criminal lawregime expands to address situations and cases closer to the margins,however, it becomes increasingly important to surface the interests atstake in decisions about international adjudication rather than mask-ing them with this ambiguous concept. The process of identifyingfully the relevant interests and developing a procedure for balancingthem will require substantial effort from the regime's prosecutors andjudges, as well as its various stakeholders, including political leaders.

Part of that process will be to refine the regime's use of theconcept of gravity. Current efforts to understand gravity in the con-text of decisions about international adjudication focus on identifyingfactors that, considered collectively, are said to be constitutive ofgravity. 198 The problem with such factor-based tests is that when thefactors are conceived broadly the test is almost infinitely malleableand when they are narrowed the test constrains the regime in waysthat 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 thecrimes, the means of their commission and their impact. 199 Such fac-tors do little to alleviate gravity's ambiguity because they are easilymanipulated to reach a desired outcome-usually prosecution. 200 Ifthe number of victims is low the decision-maker can emphasize thebroader 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, casesmust involve widespread or systematic criminality and target themost 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 toArticle 15 of the Rome Statute on the Authorization of an Investigation into the Situation inthe 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

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rejected the test, however, in part on the grounds that it would un-dermine the Court's ability to deter crimes-non-leaders would havenothing to fear from the ICC.202

The Appeals Chamber was right. In fact, virtually any effortto narrow the gravity factors would undermine some goal of interna-tional prosecution. For example, limiting international adjudicationto crimes resulting in large numbers of victims would undermine theCourt's ability to prevent crime by prosecuting attempt or early-stagecrimes. It would also exclude from the regime conduct with limitednumbers of direct victims but substantial ancillary harm such as thekilling of a political leader.

Even more importantly, a narrowly conceived factor-basedtest 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 thatthe Court's most significant potential impact lies in stimulating na-tional prosecutions of international crimes. A narrow gravity testwould 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 resistsexpansion 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. Whengravity is used to determine the appropriateness of international ad-judication it has little meaning in the abstract. In this context, thepurpose 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 Documentsinto 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 theProsecutor'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 thereforeencourage a broader application of universal jurisdiction. See Maximo Langer, TheDiplomacy of Universal Jurisdiction: The Political Branches and the TransnationalProsecution 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 EftctiveSystem of Universal Jurisdiction fir Crimes under International Law, 35 NEw ENG. L. REV.

399, 401 02 (2001) (stating that the rationales underpinning international criminal law alsosupport the application of universal jurisdiction).

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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 andindividual rights.

The weaker the international community's interest the morelikely it should cede to such competing interests. It is therefore un-satisfying for prosecutors, judges or political leaders to declare a caseor 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 suchadjudication.

If international criminal law is to serve as an instrument ofjustice, it can no longer permit gravity to mask the tensions betweenglobal human rights promotion on the one hand, and sovereignty andindividual rights on the other. Instead, gravity should be re-conceptualized to account for the competing interests at stake in deci-sions about international adjudication.

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