The battles of Fallujah in Iraq: criminalization by the International Criminal Court

Abstract

The Fallujah Battles were one of the world's worst humanitarian disasters, involving the murder and displacement of hundreds of thousands of people in the area of Fallujah City, Iraq.This article discusses the jurisdiction of the International Criminal Court (ICC) over war criminals of the Fallujah Battles. It first provides background discussion on the ICC, including the means and purposes of its establishment. It then discusses the jurisdiction of the ICC,including issues relating to temporal jurisdiction, personal jurisdiction and territorial jurisdiction, as well as the jurisdiction of the ICC over crimes committed by nationals of a non-State Party, specifically the United States which was one of the Coalition Forces involved in the Fallujah Battles, to the International Criminal Court Statute (Rome Statute). Finally, it analyses the possibility of nationals of a non-State Party being referred to the ICC by the Security Council (SC) and whether this is permissible under Article 13(b) of the Rome Statute. It will demonstrate that although the SC has the right to draw the attention of the ICC’s prosecutor towards the non-State Party, the referral would require a Security Council Resolution to be passed. If such attempt is made by the SC, the article contends that it will not succeed because the non-State Party (United States) which is a permanent member of the SC with veto power will vote against such resolution.