The Law of Gravity

RACHEL LÓPEZ*

Gravity is frequently referenced in treaties, judicial decisions of international and regional bodies, human rights reports, and the resolutions and proclamations of various bodies of the United Nations. These documents refer to certain violations of international law as being “gross,” “serious,” and “grave.” These terms are frequently used interchangeably but seldom defined, and it is often unclear what makes a violation particularly grave. Is it the extreme harm to the victim, the type of rights involved, who committed the violation, or rather the intent of the wrongdoer?

Despite the lack of clarity around the concept, classifying a violation as grave has significant legal consequences under international law. Gravity can determine whether an international court has jurisdiction to prosecute a crime or when a treaty monitoring body can take up an issue. States are prohibited from selling arms to other States if they commit grave violations of human rights or humanitarian law. Gravity has also been used to justify military intervention or punishing a State more harshly for its wrongful acts.

This Article brings more grounding to gravity by examining the concept in all of its forms and offers the first scholarly treatment of gravity across public international law as a whole. As the legal history demonstrates, gravity is a, if not the, principal unifying force across international criminal law, human rights law, and humanitarian law. Despite the absence of a formal definition of grave violations, a close examination of gravity’s jurisprudence reveals a common set of considerations that international courts and other entities typically weigh when determining that a violation is grave. Closer adherence to these determinants will result in more uniform and cohesive accountability for those violations that are of most concern to humankind.

* Associate Professor, Thomas R. Kline School of Law, Drexel University. I am grateful to Dila Torlak and Lindsay Steussy for their research assistance. I would also like to thank the participants of the New Voices in Human Rights and International Law at the 2020 AALS Annual Meeting; the Post-Conflict Justice Roundtable at Washington and Lee University School of Law; the Women in International Law Workshop at Duke University School of Law; the ASIL Mid-Year Research Forum; the International Human Rights Clinicians Conference at the University of Pennsylvania Law School; the Faculty Workshops at Seton Hall University School of Law and the University of Arizona College of Law; and the Junior International Law Scholars Conference at Brooklyn Law School for their clarifying comments and helpful feedback. In particular, I would like to thank Mark Drumbl, Margaret deGuzman, Jennifer Lee, Jean Galbraith, Hannah Bloch-Wehba, Lauren Katz Smith, Milena Sterio, James Gathii, Kristine Huskey, Benjamin N. Lawrance, Andrew Keane Woods, Justin Pidot, Jim Silk, Christiana Ochoa, Tabatha Abu El-Haj, Jeffrey Stake, Rebecca Hamilton, Jayne Huckerby, Margaret Drew, Alex Geisinger, Anil Kalhan, Rachel Brewster, Julian Arato, Maggie Gardner, Nino Guruli, Forrest Wright, Roger Clark, and the fantastic editors at the Columbia Journal of Transnational Law.