
Contents
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2 The Application of the Gravity Criterion for Admissibility in Article 17(1)(d) of the Rome Statute
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5.1 Introduction 5.1 Introduction
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5.2 The Application of the Gravity Criterion in Article 17(1)(d) of the Rome Statute and the Initiation of Investigations and Prosecutions 5.2 The Application of the Gravity Criterion in Article 17(1)(d) of the Rome Statute and the Initiation of Investigations and Prosecutions
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5.2.1 The Appropriate Indicators of Gravity and the Subjective Nature of the Gravity Assessment under Article 17(1)(d) 5.2.1 The Appropriate Indicators of Gravity and the Subjective Nature of the Gravity Assessment under Article 17(1)(d)
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5.2.2 Prosecutorial Discretion and Pre-Trial Chamber Review during the Initiation of Investigations 5.2.2 Prosecutorial Discretion and Pre-Trial Chamber Review during the Initiation of Investigations
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5.2.3 Prosecutorial Discretion and Pre-Trial Chamber Review during the Initiation of Prosecutions 5.2.3 Prosecutorial Discretion and Pre-Trial Chamber Review during the Initiation of Prosecutions
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5.3 The Function of the Gravity Criterion in Article 17(1)(d) of the Rome Statute and the Initiation of Investigations and Prosecutions 5.3 The Function of the Gravity Criterion in Article 17(1)(d) of the Rome Statute and the Initiation of Investigations and Prosecutions
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5.3.1 The Independent Expert Review 5.3.1 The Independent Expert Review
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5.3.2 The Existing Scholarship 5.3.2 The Existing Scholarship
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5.3.2.1 A Policy Criterion of ‘Relative Gravity’ 5.3.2.1 A Policy Criterion of ‘Relative Gravity’
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5.3.2.2 The Interests of Justice 5.3.2.2 The Interests of Justice
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5.3.3 Rejecting the Approaches in the Existing Scholarship 5.3.3 Rejecting the Approaches in the Existing Scholarship
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5.3.3.1 A Policy Criterion of ‘Relative Gravity’ 5.3.3.1 A Policy Criterion of ‘Relative Gravity’
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5.3.3.2 The Interests of Justice 5.3.3.2 The Interests of Justice
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5.4 Recommendations for Practice 5.4 Recommendations for Practice
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5.4.1 At the ICC 5.4.1 At the ICC
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5.4.2 At Other International and National Criminal Courts 5.4.2 At Other International and National Criminal Courts
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5.5 Conclusion 5.5 Conclusion
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5 The Function of the Gravity Criterion for Admissibility in Article 17(1)(d) of the Rome Statute
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Published:January 2024
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Abstract
Recapitulating the application of Article 17(1)(d) of the Rome Statute proposed in Chapters 2, 3, and 4, this chapter argues that the function of the gravity criterion in the context of the Prosecutor’s decisions whether to investigate and whether to prosecute is not the exclusion of cases of marginal gravity only, as is the suggestion of the Appeals Chamber. The function of the gravity criterion in this context is the allocation of investigative and prosecutorial resources. Examining the suggestions in the existing scholarship as to how to justify the selectivity of investigations and prosecutions at the Court, the chapter finds unpersuasive both the proposal to include an additional policy criterion of ‘relative gravity’ over and above the admissibility requirement of sufficient gravity in Article 17(1)(d) and the suggestion that the ‘interests of justice’ criterion better facilitates the allocation of resources. It concludes with recommendations for the practice of the Court and for the use of a criterion of gravity to the same end at other international or national criminal courts.
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