Global Prescriptive Authority

This chapter explores the relationship between gravity and global prescriptive authority— the authority of the global community to prescribe rules of conduct and consequences for violating those rules. . It surveys the principal theories of international crimes and shows that virtually all of them rely significantly on a gravity threshold above which international prescriptive authority is justified. It goes on to explain how gravity has impeded the development of a coherent moral theory of global prescriptive authority, and advocates a theory that links such authority to the moral values at stake in labeling a crime “international,” in particular the value of human dignity.

Conclusion

This book has examined the legal and theoretical bases for the often-cited claim that international criminal law addresses crimes of such gravity that they “shock the conscience of humanity.” It has argued that gravity as a justifying rationale is undertheorized and that the lack of consensus about the meaning of gravity undermines the legitimacy of the international criminal law regime. Addressing each of the decision-making contexts in which gravity plays an important role, the book has set forth proposals to operationalize the concept in ways that promise to better promote the regime's legitimacy. The book has suggested that for global institutions such as the international criminal court, gravity should be a function of global community values and goals, in particular, the value of promoting and protecting human dignity. It has advocated an inclusive dialogic process for identifying the particular values and goals associated with human dignity that ought to be given priority in each decision-making context in order to ensure that international criminal law serves as an effective tool of global crime prevention.

Legitimacy, Gravity, and Global Community

This chapter provides a theoretical framework for the book’s central argument that the concept of gravity should be reconceived as a function of values and goals to promote the legitimacy of international criminal law. It does so by: (1) explaining how the book uses the concept of legitimacy; (2) describing the pervasive goal-independent approach to gravity as a justification for regime decisions, and explaining the proposed reconceptualization; (3) elaborating a theory of international criminal law as both a tool, and constructor, of the global justice community; and (4) suggesting some of the global values and goals that ought to guide regime decisions.

Introduction

This book examines the role that the concept of gravity plays in determining the legitimacy of international criminal law. The Introduction sets forth the book’s central arguments that: (1) the international criminal law regime relies heavily on the concept of gravity to justify its existence and many of its decisions; (2) the concept is undertheorized and ambiguous; (3) the regime’s reliance on the concept undermines its legitimacy; (4) gravity should be reconceptualized as a function of the regime’s values and goals; and (5) the regime’s focus should be on global community values and goals, rather than on those of the national communities most directly affected by the crimes it addresses.

Sentencing

Gravity is a central concept—often the central concept—that international criminal courts invoke in justifying sentencing decisions. This chapter shows that international sentencing decisions frequently invoke gravity in inconsistent and unexplained ways, thereby detracting from the legitimacy of such decisions. It argues that gravity as a sentencing criterion at international courts ought to be conceptualized in relation to the goals of punishment that are most appropriate for those institutions. It proposes a utilitarian theory of global sentencing that centers crime prevention, especially through deterrence and norm expression, and rejects retribution and harsh punishment. The goal should be to achieve the most deterrence and expressive prevention possible at the lowest cost.

Defendants’ Rights and Defenses

This chapter shows that courts and commentators sometimes use the concept of gravity to justify restricting defendants’ rights, including the right to a fair trial, and to limit defenses, such as those based on amnesties and immunities. As in the contexts discussed in earlier chapters, such invocations of gravity tend to obscure competing values and goals, often favoring accountability without adequate justification. As such, they threaten the legitimacy of the international criminal law regime. The chapter proposes a reconceptualization of gravity as a function of global goals and values, and argues that competing values should be balanced to achieve more legitimate outcomes.

A Brief History of Gravity

This chapter describes the evolution of gravity in the development of international criminal law’s legal and moral norms. It shows that the regime’s strong reliance on gravity is more a matter of historical circumstance than of moral necessity. Gravity’s centrality in international criminal law was not inevitable. International criminal law could have developed to address crimes like drug trafficking that cross borders, or crimes like piracy that are committed outside any state’s territory. Instead, due to the historical context in which it evolved, international criminal law came to rely for its legitimacy on the idea that it addresses particularly serious crimes.

Global Adjudicative Authority

This chapter examines the relationship between gravity and global adjudicative authority—the global community’s right to create adjudicative institutions, and for those institutions to adjudicate crimes. It argues that such authority is justified when two conditions are met: first, there must be a globally shared norm proscribing the conduct and subjecting violators to criminal sanction; and, second, the global community’s adjudicative goals must be sufficiently important to outweigh any countervailing goals, particularly those of relevant national communities. Additionally, to best promote the regime’s legitimacy, the situations and cases adjudicated must be those that achieve the global community’s most important goals most efficiently. The chapter proposes a reconceptualization of gravity to help ensure these conditions are met.