Gravity as a Requirement in International Criminal Prosecutions: Implications for South African Courts

Abstract

The responsibility to bring perpetrators of international crimes to justice lies first and foremost with the municipal criminal justice systems of each state. The Rome Statute relies on the concept ‘gravity’ on four primary levels: 1) for institutional legitimacy; 2) situational gravity for the exercise of prosecutorial discretion; 3) as a precondition to admissibility; and 4) as a substantive component of each of the Rome Statute crimes. In relation to prosecutorial discretion and admissibility, the Rome Statute uses the concept ‘gravity’ as a device with a primary aim of preventing the International Criminal Court’s (ICC) limited capacity from being usurped by less severe infringements of international criminal law. Municipal jurisdictions are not hampered by an inherently limited capacity, as is the case before the ICC. As such, gravity is to be applied mutatis mutandis to municipal prosecutions in a manner suited to the nature of municipal criminal justice systems and the demands of justice. This contribution concludes with an analysis of ‘gravity’ in South African courts in the context of prosecutions of international crimes. Nevertheless, the broader points made hold true equally for a number of jurisdictions internationally, and in particular, those jurisdictions that adhere to a common law tradition.