ICC Inability Determinations in Light of the Dujail Case

Abstract:     
Under the principle of complementarity, the International Criminal Court (ICC) will only exercise jurisdiction when a state is "unwilling or unable genuinely to carry out the investigation or prosecution" of alleged criminals. Unfortunately, "unable" is largely undefined. Article 17(3) of the ICC statute provides a skeletal definition, stating "[t]o determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings." This definition raises as many questions as it answers.

The Dujail case of the Iraqi High Tribunal (IHT) presents an interesting test case for analyzing the principle of complementarity. The IHT will likely serve as the model for future internationalized domestic tribunals and is therefore an important experiment in international criminal law. Thus, assuming arguendo that Iraq was a signatory to the ICC, would the IHT and Iraq's criminal justice system have met the standards precluding the ICC from exercising jurisdiction? Under ICC jurisprudence, what constitutes "unable"? Did the procedural shortcomings and other failures of the Dujail case rise to the requisite level of inability?

In Part One, I consider the ICC standard for "unable." I discuss the definition of "unable" as provided by ICC Statute Article 17. I examine the ambiguity of the term, and outline the ICC procedures for determining inability. I detail the due process thesis and textualist approaches to inability determinations, and explain the expanded ability criteria developed by the ICC and the ICC's migration towards the due process thesis.

In Part Two, I apply the inability approaches detailed in Part One to the IHT. I begin by addressing the significance of the IHT and the criticisms of the IHT by various non-governmental organizations (NGOs). I then apply each of the inability approaches to the IHT fact pattern and the criticism leveled by the NGOs. I conclude this section by determining whether the IHT could be deemed "unable" under each test.

I conclude the article by discussing the implications of these questions for the ICC and for domestically constituted tribunals. I recommend that the ICC determine clear-cut criteria for inability determinations, as this will promote domestic tribunals and placate some ICC critics.

Number of Pages in PDF File: 34

Keywords: Article 17, ICC, inability, Dujail, IHT, Iraqi High Tribunal, unable, complementarity, transitional justice, due process, international criminal court, textualist

JEL Classification: K33, K14

Accepted Paper Series