Factors Relevant for the Assessment of Sufficient Gravity in the ICC Proceedings and the Elements of International Crimes

The question of the assessment of ‘sufficient gravity’ for the purpose of cases and potential cases before the International Criminal Court (ICC) has been increasingly debated over the last decade. The relevant ICC case law – which this paper will examine briefly – is not explicit as to which elements are relevant for this gravity assessment. Accordingly, an analysis of this issue is of practical relevance and has some theoretical allure since the gravity assessment may lead to the decision not to open an investigation or to consider inadmissible a case. The present paper suggests that only factors that are not elements of international crimes should be taken into consideration. In order to advance this argument, this paper examines the recent proceedings on Mavi Marmara, in which there was strong disagreement between the Office of the Prosecutor (OTP) and the Pre-Trial Chamber I (PTCI) in regards to the gravity of the potential cases arising from that situation