Physical and Legal Inability under Article 17(3) of the Rome Statute

Abstract

While the complementary regime of the International Criminal Court (icc) has been the subject of extensive examination in the literature, this article offers a new reading of the inability scenario that establishes a clear distinction between two different forms of inability under Article 17(3) of the Rome Statute. An in-depth analysis of this article as this review suggests, would show that the reason behind the inability of a national judicial system is attributed to one of two factors or even the two together; first, physical factors, in the case of ‘total or substantial collapse’, and second, legal factors, in the case of ‘unavailability of national judicial system’. Significantly, the aforementioned distinction is not limited to theoretical debate, but it has pivotal legal ramifications as the emerging practice of the icc shows, or rather does not show, as it seems that the icc confuses the two forms of inability.