Abstract
AbstractThe Prosecutor must exercise prosecutorial selection due to his limited capacity. Therefore, Article 53 provides a complicated corset that has to be applied in a consistent manner. One of the central themes is gravity, which has generated early case law in Lubanga and Ntaganda. In this article, the author argues that the notion of gravity entails two different layers: a legal gravity threshold and a relative (discretionary) gravity assessement, linked to Article 53(1)(b), 17(1)(d) and Article 53(1)(c) respectively. As will be shown below, neither the OTP nor the Chambers have developed a congruent gravity approach. Starting from the author's basic distinction between two gravity facets, the ICC's actors are now able to fill in the blanks: they must sort out legal and policy criteria and apply them accordingly under legal or relative gravity.
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