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Briefing: A rocky start for war crimes world court

The arrest warrant for Sudan's president is indicative of the mounting pressure on the International Criminal Court to show results.

By Contributor / March 6, 2009

DEFIANT: Sudanese President Omar al-Bashir denounced the ICC as part of a new 'colonialism' at a March 5 rally.

Nasser Nasser/AP

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The International Criminal Court's indictment Wednesday of Sudanese President Omar al-Bashir prompted Sudan to expel more than a dozen aid groups, and some African leaders warn that the arrest warrant will damage fragile peace negotiations. The court's first trial, which began in January to try Congolese warlord Thomas Lubanga, was postponed after the star witness recanted his testimony.

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It's a rocky start for the young tribunal set up to try the most serious international crimes. The court, the world's first permanent war crimes tribunal, faces mounting pressure to show results in the face of logistical hurdles and harsh opposition to both its very existence and its attempts to carry out justice.

Why did the international community decide to set up a permanent court?

Until the establishment of the ICC, no permanent court existed for trying individuals accused of war crimes or genocide. The International Court of Justice only has jurisdiction over conflicts between states.

But nations have been prosecuting war crimes since after World War II, when the Allied powers created international tribunals to try Nazi and Japanese war crimes. In more recent decades, the United Nations has established tribunals to prosecute war crimes in the former Yugoslavia, Rwanda, Sierra Leone, and Cambodia. But these tribunals are expensive, and experts say they are less efficient and less of a deterrent than a permanent court.

"The ad-hocs are wonderful institutions, but they're a stopgap, temporary sort of measure," says Leila Nadya Sadat, a law professor at Washington University School of Law and a delegate to the diplomatic conference at which the ICC was established. "Each one of the ad hocs we've seen has a huge learning curve, so you waste a lot of time."

The time gap between when the crime takes place and the establishment of a temporary tribunal gives the defendants time to destroy evidence, says Ms. Sadat, while a permanent court can act more quickly. In some cases, temporary courts are subject to the accusation of victor's justice, but a permanent court relies on laws already on the books before a crime takes place, which can increase its credibility. And because ad-hoc tribunals are temporary, possible defendants could wait out the court, waiting for it to be shut down before coming out of hiding.

What is the ICC?

The ICC was established in 2002 when 60 nations ratified the Rome Statute, the treaty that forms the legal basis for the court. Its mission is to try the most serious international crimes, particularly genocide, crimes against humanity, and war crimes. With its seat in The Hague, it is independent of the United Nations, and is funded by its 108 member states with a 2009 budget of about $127 million.

The court is meant to work alongside, not replace, domestic prosecution, and to handle only crimes that nations cannot or will not prosecute on their own.