Unraveling Sufficient Gravity: Interpreting Article 17(1)(d) of the Rome Statute in light of ICC’s threefold and twofold tests

Abstract

While the International Criminal Court (ICC) can determine admissibility on its own motion, parties can challenge the admissibility of the case pursuant to Article 17(1)(d) of the Rome Statute (RS), which requires “sufficient gravity to justify further action by the Court.”—the Chambers may even determine the admissibility of the case solely on the basis of gravity. Despite the centrality of the gravity assessment, “gravity” alone is not defined or exemplified anywhere in the Rome Statute or even the later-adopted Rules of Procedure and Evidence; let alone the threshold of what would constitute “sufficient” gravity. Within the active operation of the ICC, the Court has applied two tests to determine “sufficient gravity”, pursuant to the requirement espoused in Article 17(1)(d) RS. The two tests are, firstly, the threefold test originating from the Situation in Congo case, constituting (1) large-scale or systematic conduct, (2) social alarm, and (3) the most senior leader, and, secondly, the twofold test gathered in Situation in Côte d’Ivoire case, constituting (i) the aggravating factors of the case, and (ii) persons bearing the greatest responsibility. This research paper aims to review the implications by both tests in light of the interpretation of Article 17(1)(d) RS using general rule of treaty interpretation under customary international law—Articles 31 and 32 of VCLT—where necessary, in order to determine the compatibility of the proposed tests by the ICC with the gathered interpretation, and if there should be any modification made in the current practice of determining “sufficient gravity”.