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9. Inability

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Chapter Summary

The term "inability" is not defined in the Rome Statute, but article 17(3) provides some clarifying factors that shall be considered for the determination. This chapter discusses the factors listed in article 17(3) of the Rome Statute for the determination of "inability" as well as some general or specific circumstances which might indicate a state's "inability". The state must experience either a "total or partial collapse" of the national judicial system or the same system's "unavailability". The interpretation of "total collapse", "substantial collapse" or "unavailability" causes of inability is crucial for determining the scope and application of the "inability" criterion. While failure to prosecute due to a total or substantial collapse or the unavailability of the national judicial system will not pass the admissibility test, normal capacity constraints might justify decisions not to prosecute the less responsible.

Keywords: inability; judicial system unavailability; national judicial system; Rome statute; substantial collapse; total collapse



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