Iraq and the ICC: Should Iraqi nationals be prosecuted for the crime of genocide before the International Criminal Court?

The international legal community has been contemplating the creation of a permanent international criminal court for more than seven deccades. That goal was finally realized with the formation of the International Criminal Court (ICC). Established in July 2002, the ICC will investigate and prosecute the most egregious violations of international criminal law -- the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. Since its inception, however, the Court's jurisdictional power has been a matter of considerable controversy, particularly the extent to which nationals of non-signatory states may be eligible for prosecution. The situation in Iraq exemplifies this problem. While not a party to the Rome Statute of the ICC, there is strong evidence to suggest that Iraqi nationals may be guilty of genocide. Moreover, the government of the United States, also a non-signatory state, has a clear incentive to see that Iraqi nationals are prosecuted for these crimes. Part I of this essay reviews the crime of genocide and the use of ad hoc tribunals for prosecuting genocidal offenses. Part II describes the development of the ICC and discusses its prosecutorial alternatives. Part III describes genocidal events in Iraq and discusses whether Iraqi nationals are eligible for prosecution for the crime of genocide before the ICC. Part IV discusses the future of the ICC.