ICC inability determinations in light of the Dujail case.

• Author: McNeal, Gregory S.

The Court will really have to invent, create and define the meaning of a state that is unable or unwilling to conduct "genuine" proceedings.

Phillipe Kirsch (1)

1. INTRODUCTION

   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." (2) 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. Using the IHT as a case study is important because the Tribunal will likely serve as the model for future internationalized domestic tribunals. 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.

2. ICC ARTICLE 17 "UNABLE"?

   Inability is a prime feature of the ICC's complementarity regime. Unfortunately, the concept is largely undefined and subject to varied interpretations. The ICC Statute, written to defer to the jurisdiction of domestic courts, establishes seemingly straightforward conditions for determining whether the ICC will hear a case on inability grounds. (3) Nations are presumed capable to prosecute cases; for the ICC to exercise jurisdiction, the ICC Prosecutor must demonstrate that the state was unable to effectively pursue domestic prosecution. (4) Specifically, Article 17(3) of the ICC Statute states that "[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." (5) Broadly speaking, complementarity is meant to ensure that the ICC only exercises jurisdiction over cases where the domestic judicial system does not investigate or prosecute the crime. In the case of inability, complementarity is designed to ensure that the ICC will not exercise jurisdiction if a state is able to investigate and prosecute a crime. States are generally afforded the opportunity to address criminal wrongdoing, and with good reason. "[T]here are substantial arguments that the fullest cathartic impact of the prosecutorial approach to war crimes occurs when the responsible population itself comes to grips with its past and administers appropriate justice." (6) United States Ambassador to the United Nations John Bolton, an outspoken ICC critic, commented on complementarity, and the benefits of ensuring local justice stating:

   It is within national judicial systems where the international effort should be to encourage the warring parties to resolve questions of criminality as part of a comprehensive solution to their disagreements. Removing key elements of the dispute to a distant forum, especially the emotional and contentious issues of war crimes and crimes against humanity, undercuts the very progress that these peoples, victims and perpetrators alike, must make if they are ever to live peacefully together. (7) However, as Article 17(3) makes clear, when domestic systems fail and are unable to prosecute criminals, the ICC may assert jurisdiction. A state's failure to act may be a result of

   poor administration of justice, or a breakdown of State institutions, such as the national judicial system, or of widespread anarchy. The State must be unable to obtain an accused or key evidence and testimony, and its inability must relate to the total, substantial collapse, or unavailability of its judicial system. (8) Article 17(3), articulates this "unwilling or unable" test and addresses the "failed state" scenario in which a "State's legal and administrative structures have completely broken down." (9) However, some argue that Article 17 covers circumstances where states are unable to conduct trials meeting international human rights standards.

   1. Ambiguity of Inability Terminology

      Inability is an ambiguous term, and even members of the court have admitted that the jurisdictional authority stemming from the "unable" term remains unclear. In an address to the Canadian Department of Justice, President of the ICC Phillipe Kirsch explained that, when it comes to the principle of complementarity "[t]he Court will really have to invent, create and define the meaning of a state that is unable or unwilling to conduct 'genuine' proceedings." (10) If the provision must be left to the court's judges to "invent" and "create," it certainly lacks clarity and is subject to varying definitions.

      The most popular definition is the one cited by the ICC's website, stating that "[a] country may be 'unable' when its legal system has collapsed." (11) Others contend that:

      [t]he criteria for inability are clearly provided in Article 17(3) in [an] objective way. In order to 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. While this definition may be objective it is far from clear, particularly because no established definition for the term "collapsed" exists. According to one scholar, collapsed refers to a legal system that is "insufficiently organized to gather evidence or is 'otherwise unable to carry out its proceedings.'" (12) Another states that "[i]nability is confined to a total or partial collapse of the criminal justice system of the State concerned," (13) adding more complexity to the terminology by introducing the term "partial collapse." A third believes that inability or collapse refers "primarily to situations in which there is a lack of central government or a state of chaos due to conflict or crisis." (14) None of these proposed definitions shed much light on what inability means, rather they simply restate what's already in Article 17. This reinforces the point that the actual content and operation of "unable" is still unclear.

   2. ICC Procedures for Determining Inability

      Some uncertainty exists as to the actual procedure to be followed to assess inability. For the ICC to determine that a state is "unable," it would have to determine that the tate's "ability to administer justice is" in question. (15) This assessment would require a determination that "the state lacks effective mechanisms to obtain the accused or the necessary evidence and testimony; or that it is otherwise unable to carry out proceedings." (16) According to an official ICC policy paper, the provision on inability to investigate or prosecute "was inserted to take account of situations where there was a lack of central government, or a state of chaos due to the conflict or crisis, or public disorder leading to collapse of national systems...." (17)

      According to an informal ICC paper, (18) the inability assessment first considers "collapse" or "unavailability" of the national judicial system, and then the state's ability to obtain the accused or the evidence and testimony. (19) Article 17 includes a catchall clause which raises for consideration whether a state is "otherwise unable to carry out proceedings." The factors to consider when determining "inability" include the:

      * lack of necessary personnel, judges, investigators, prosecutor [sic];

      * lack of judicial infrastructure;

      * lack of substantive or procedural penal legislation rendering system "unavailable";

      * lack of access rendering system "unavailable";

      * obstruction by uncontrolled elements rendering system "unavailable";

      * amnesties, immunities rendering system "unavailable." (20)

      While the informal paper set forth seemingly objective criteria, the addition of further factors to consider increases the ambiguity of the process. The ICC has presented no paper or guidance indicating what weight will be attributed to the criteria outlined above. For example, if a tribunal has an adequate number of judges, investigators and prosecutors but lacks an appropriate number of personnel in its outreach office, is the tribunal thus...