SHOCKING THE CONSCIENCE OF HUMANITY – Gravity and the Legitimacy of International Criminal Law, by Margaret M. deGuzman, Oxford University Press, 2020, 217 pages, £80.00/$90.00
Global adjudicative authority is the authority that national and supranational institutions exercise when they adjudicate crimes on behalf of the global community…. [T]he moral justification for global prescription is the global community’s interest in preventing harm to human dignity. Global prescription is thus justified for all non-minimal harms to human dignity, and is most strongly legitimate for those in which the global community has the greatest interest. In contrast, the legitimacy of global adjudication depends not only on the strength of the global community’s interest in adjudication, but also on whether that interest outweighs any countervailing interests. (p. 98)
Prosecutors in national jurisdictions exercise their authority on what to charge or not charge, based on several variables, with gravity not playing much of a role – at least not in the context understood and applied in charging international crimes. Gravity is more likely to come to the fore at sentencing. It makes sense. The legislature criminalizes conduct based on societal/community norms. Thus, whether a particular set of circumstances should be prosecuted generally does not factor gravity into the mix, as such, when the evidence supports a reasonable assessment that the requisite elements in establishing the commission of a crime are met. Put differently, if in the prosecutor’s opinion, the evidence is qualitatively sufficient to meet his or her burden of proof in establishing that a particular individual committed crimes, save for ancillary factors that militate against prosecution, the prosecutor is expected to charge and prosecute that individual. I am oversimplifying for the sake of brevity, but the point is that in national prosecutions, “gravity” plays a lesser role on whether to charge or not. Even then, usually, there are criteria that guide prosecutors and judges – as readily apparent when fashioning sentences.
Gravity at the international(ized) criminal tribunals and courts is of greater importance. At the ad hoc tribunals, the issue of gravity played a less prevalent role in the charging process. There was no real gravity threshold applied – at least not until the “completion strategy” kicked in and the adoption of the judge-made rules, like Rule 11bis of the ICTY’s Rules of Procedure and Evidence, the purpose of which was to screen indicted cases so accused of lesser stature or charged with less severe crimes could be repatriated and prosecuted by national courts.
Nonetheless, gravity does play a role, albeit in different contexts and not necessarily in keeping with the high fair trial rights standards international(ized) criminal tribunals and courts claim to uphold. By this I mean using gravity as an excuse to dispense with the strict application of legality or to accept and rely on questionable evidence to achieve a nobler goal of convicting accused charged with mass atrocities – particularly if the accused is perceived as guilty as charged in the court of public opinion. At the International Criminal Court (ICC), gravity plays an explicit role when it comes to investigating, charging, confirming, and of course, sentencing. How is or should gravity be measured is not explicit. And therein problems may lie: just how should gravity be measured?
Whatever the jurisdictional requirements are at the international(ized) criminal tribunals and courts, we can safely say that gravity plays a role, even when not formally articulated. How so? Well, in any international situation or case involving mass atrocities, there are countless individuals that are responsible, countless of victims that deserve and expect justice, countless of crime sites, countless crimes, etc. Yet, resources are finite, and time is at a premium (considering how long it takes from investigation to appeal for a case to be completed). Prosecutors need to be judicious when selecting cases. And in some international adjudicative institutions, such as the ICC, judges may also have a significant say-so on whether a factual matrix of a situation or case meets the ICC’s gravity threshold.
I must admit, that over the past 20 years practicing international criminal law as a defence counsel, I have not given any serious thought to the issue of gravity – how it has been generally considered, articulated, and applied. You hear the term gravity, and you hear some general phrases that are supposed to convey the sense of gravity for a particular action, and occasionally you hear about factors that should be considered in determining the level of gravity, but you rarely find a satisfactory answer to what is gravity. What is it based on? How should it be measured? How do you determine gravity based on a set of facts and circumstances? And so on. If a given set of facts shock the conscience (like obscenity, you know it when you see it), then it seems elementary to presume/conclude – without any reasonable or rational analysis – that the crimes were grave enough to be charged. Perhaps, but not necessarily so. But should there not be a systematic approach in determining gravity? Should decision-makers not be required to explain how, on what, and to what extent identifiable criteria were selected and valued in discerning the level of gravity and the actions or inactions that, as a consequence, must flow?
And what of legitimacy – how does gravity factor into the equation?
I must confess with some degree of discomfiture that I have only casually associated gravity with legitimacy. The way I tended to approach a court’s legitimacy, especially its decisions, has been rather straightforward: viewed objectively, what is the adjudicative institution’s quality, consistency, and uniformity of substantive and procedural justice? I remain convinced that this is the hallmark for a well-functioning, legitimate international adjudicative institution. The well-worn aphorism that justice should not only be done but also seen to be done may sound trite but there is much truth to this if a court’s decision is to enjoy wide-spread acceptability and legitimacy. And of course, the more acceptable and legitimate the overall judicial process is perceived to be, the more legitimacy the court will enjoy.
Happily, by happenstance, I came across Professor Margaret M. deGuzman’s outstanding little gem: SHOCKING THE CONSCIENCE OF HUMANITY – Gravity and the Legitimacy of International Criminal Law. I am now having to do a rethink, having an appreciation of how gravity plays a vital role in the legitimacy of an adjudicative institution – in a variety of ways – from charging, application of the law, to admission of and reliance on evidence, to findings of facts and conclusions of law, to the rights of the accused, to sentencing, and, in no small measure, to meeting the aspirational goals of the impacted community and the global community reflected in the preamble of the institution’s founding document.
One may not associate legitimacy with gravity, but when accepting or declining to investigate or prosecute a situation or case at the ICC, explaining in the reasoning how gravity impacted or factored into the decision will invariably assist in the acceptance of the decision by those most impacted, and by the global community as well. Suffice it to say, where there is a uniform process through which gravity can be determined based on a case-by-case basis (fact/circumstance-determinative), and if this is clearly and transparently articulated, then all the better.
Prof. deGuzman has much to say about gravity and how it lends legitimacy to international criminal law in her slim but weighty text. After setting the stage in a cogent introduction, in chapter 1 she discusses legitimacy (normative versus sociological) in the context of international(ized) criminal tribunals and courts, how gravity is used in various contexts as a function of community goals, and how both are relevant to the expectations of the global community. Chapter 2 provides an excellent brief history of gravity, before moving on to what Prof. deGuzman articulates as the global prescriptive and adjudicative authority in chapters 3 and 4 respectively – perhaps the most insightful chapters. Chapters 5 and 6 should be particularly interesting to defence counsel, since they cover accused’s rights, defences, and sentencing. She ends with a measured conclusion, leaving the reader with much to consider.
At the risk of simplification, the gist of Prof. deGuzman thesis can be seen through her linking of gravity with justice: gravity, like justice, is a “concept that must be imbued with values to play a useful role in the world, but remains helpful for describing conclusions once the necessary analysis is performed.”
Sounds reasonable, but how to achieve this goal?
Prof. deGuzman points out that gravity is unevenly conceived, imprecisely justified, and misguidedly applied, due, in part, to it being used as a minimum threshold explained through a list of factors with little to no effort being made to provide cogent reasoning as to the choice of factors (usually “scale, nature, manner of commission, and impact of the crime”), or the priorities assigned among them.
Acknowledging that there may be some value in applying a gravity inquiry as a threshold in whether to charge international crimes, Prof. deGuzman invites decision-makers to a reconceptualization of gravity as a function of values and goals that would guide decision-makers on a case-by-case basis. To that end, she attempts (rather admirably) to expose the values and goals that ought to be part of a contextually based analysis, inclusive of which is determining the community values that ought to be considered. Thus, gravity would reflect first and foremost the impacted community’s values and goals, in addition to any values globally shared. Refreshingly, she points out that retribution is not among the globally shared values.
Prof. deGuzman suggests reconceptualization through a dialogic process that is inclusive. Of course, this will require decision-makers to first acknowledge that there is merit in recalibrating how they go about articulating gravity beyond the listing and application of malleably vague criteria, with little to no justification or basis for the weight given, the periodization assigned, etc. A fine proposal, but not an easy sell.
Prof. deGuzman’s SHOCKING THE CONSCIENCE OF HUMANITY – Gravity and the Legitimacy of International Criminal Law offers valuable insight for practitioners and decision-makers and is an excellent starting point for the much-needed dialogic discussion proposed. If you are interested in the issue of gravity and the role it plays in lending legitimacy to prosecutions of international crimes both in international and national courts, if you are a prosecutor responsible for drawing up charges and deciding whether to charge or not, if you are a defence counsel in need of challenging jurisdiction based on gravity or making a sentencing plea where gravity is an issue, or if you work for a chamber where gravity is likely to be at issue, I highly recommend this book.