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Discretion and the Gravity of Situations at the International Criminal Court

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This article offers a new perspective on the gravity notion in Article 17(1)(d) of the Statute. It demonstrates that it is impossible to determine gravity to ‘exacting legal requirements’, as the Pre-Trial Chamber in the situation of the registered vessels of the Union of the Comoros, Greece and Cambodia found. Instead, the Prosecutor is equipped with some ‘interpretative discretion’ that allows adjustment to the factually diverse situations that the International Criminal Court (ICC) is confronted with. This form of discretion, however, is distinct from those procedural discretionary processes that have to be used to select which situations to investigate. Interpretative discretion nevertheless requires as much consistency as possible. As pathways to achieve that, this article challenges the concept of situational gravity. It further proposes to exclude any perpetrator-based element in the gravity assessment to harmonise the interpretation of gravity for potential and real cases before the ICC.

Affiliations: 1: Doctoral Candidate, School of Law, University of Glasgow, Glasgow, UK; Member, ICC Bar Association

10.1163/15718123-01705002
/content/journals/10.1163/15718123-01705002
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/content/journals/10.1163/15718123-01705002
2017-10-15
2018-07-17

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