Gravity and the Legitimacy of the International Criminal Court

Margaret McAuliffe deGuzman, Yale Law School '99


The gravity of the crimes it adjudicates represents the principal normative justification for the jurisdiction of the international criminal court. The States of the world cooperated to form the Court not in pursuit of their individual national interests, but out of a shared belief that particularly grave international crimes should not go unpunished. In creating an independent criminal court with the power to determine which cases merit international adjudication, the international community endowed an apolitical organization with a form of sovereign authority. States that oppose the Court, in particular the United States, protest loudly that such independence is antithetical to the legal, moral, and political norms of the international order. For States that support the ICC, on the other hand, it is the gravity of the cases and crimes at issue that justifies the sovereignty costs of joining the Court as well as the imposition of international criminal jurisdiction on nationals of non-party States in some circumstances.

Yet despite the acknowledged philosophical centrality of gravity to the ICC’s jurisdiction, academic and judicial sources are virtually silent as to the concept’s theoretical basis and doctrinal contours. This Article seeks to fill that gap by examining the roles gravity plays in the ICC regime, suggesting a theoretical framework for understanding those roles, and proposing prescriptive approaches to gravity that flow from the theoretical framework. The theory developed herein situates gravity as a key determinant of the ICC’s moral and sociological legitimacy. Gravity helps to establish the moral legitimacy of the ICC’s exercise of jurisdiction by requiring the Court to conduct a preliminary balancing of sovereignty against justice, and serves to bolster the ICC’s sociological legitimacy by encouraging the Court’s prosecutor to pursue the most serious situations and cases available. As this nascent institution struggles to establish its legitimacy, one of its most urgent tasks is to develop and articulate a sound approach to gravity. This Article aims to contribute to that process.