The Tension between Law and Politics: Can the ICC Navigate a Multipolar World?

This panel was convened at 9:00 am, Saturday, April 6, by its moderator, Shahram Dana of the John Marshall Law School, who introduced the panelists: Margaret deGuzman of Beasley School of Law, Temple University; Frederic Megret of McGill University; Diane Orentlicher of American University Washington College of Law; and Darryl Robinson of Queens University, Ontario. GRAVITY RHETORIC: THE GOOD, THE BAD, AND THE POLITICAL By Margaret M. deGuzman * The concept of gravity plays a central role in determining the ICC's place in the global legal and political orders. Indeed, the rhetoric of criminal law more generally is replete with references to the gravity, or seriousness, of the subject matter. Virtually every commentary on criminal law invokes the horrific nature of the that are the subjects of this body of law. They are labeled atrocities, unimaginable acts, and crimes that shock the conscience of humanity. The statutes of courts, as well as statements of prosecutors, judges, and politicians, all reflect the centrality of gravity rhetoric to the criminal law regime. Gravity rhetoric operates in several important ways in the regime. Most importantly, for purposes of this discussion, gravity rhetoric serves to justify the jurisdiction of courts as well as the exercise of that jurisdiction in particular situations and cases. Beginning with the International Military Tribunal at Nuremberg, gravity rhetoric has been used to justify the establishment of criminal courts. In recent years, the UN Security Council has used gravity rhetoric to justify the creation of ad hoc criminal tribunals and the referral of situations to the ICC, even when the relevant states have not consented to the jurisdiction of those bodies. Gravity rhetoric thus seeks to limit the powers traditionally associated with state sovereignty, with important consequences for global order. Gravity rhetoric also significantly affects the rights of individuals accused of international crimes. Once a crime is labeled a serious crime of concern to the community, certain protections traditionally afforded to defendants are deemed inapplicable, or at least less important. Examples include statutes of limitations, immunities, and the principle of legality. The gravity of the justifies privileging the quest for accountability over the protection of individuals against the possibility of unjust conviction and punishment. Despite the importance of the concept of gravity in criminal law, little attention has been paid to its impact on the regime. In my recent work, I have attempted to shed light on gravity's role in the criminal law regime, with particular attention to the regime's central institution, the ICC. (1) Among the conclusions I have reached are the following: (1) the concept of gravity is inherently ambiguous and malleable; (2) gravity's ambiguity has enabled the concept to serve a constructive role in the regime; and (3) the concept's ambiguity is also problematic for the regime in a number of important ways; in particular, it serves to obscure choices among competing values. While participants in the criminal law regime frequently invoke the gravity of the at issue, they rarely seek to explain what makes such particularly bad. Reference is often made to the large number of victims affected by the crimes. However, many people are uncomfortable relying on numbers to explain crime seriousness, since the implication is that a single murder or rape is not especially bad. Instead, the ICC Prosecutor and judges have invoked a number of factors that contribute to a determination of seriousness including the scale, nature, manner of commission, and impact of the crimes. The result of this factor-based approach is that virtually any crime can be labeled grave. …

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