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.
(Page 3 of 3)
What obstacles does the ICC face?Skip to next paragraph
Subscribe Today to the Monitor
The court confronts myriad hurdles to bring any case to trial. Some of the most daunting are logistical: the ICC must investigate, gather evidence, and secure the arrest of suspects in some of the world's most underdeveloped corners.
"These are very complex cases, extraordinarily complex cases," says Mr. Newton. "You're talking about all the witnesses and all the evidence having to go to another continent for a trial. And also having to collect evidence in situations where the local officials are not necessarily going to cooperate with the court."
The ICC cannot make arrests, and relies on states to arrest defendants and turn them over to the court. a key weakness. Indictees like Bashir can simply remain in a nonmember state, like Sudan, to avoid capture and trial. However, if Bashir travels abroad, the court says it will seek his arrest.
The court's jurisdiction can also prove to be a troublesome issue. ICC chief prosecutor, Luis Moreno-Ocampo, said in February that he would consider an investigation into alleged war crimes committed by Israel in its recent offensive in Gaza. His announcement came after the Palestinian Authority recognized the court's jurisdiction in an attempt to bring charges.
But the Palestinian territories are not a state, and Israel is not a party to the Rome Statute, raising questions of whether the court would have jurisdiction in the situation.
Why does the US oppose the ICC?
Former President Bill Clinton's administration signed the Rome Statute in its last days in office, though the treaty was not sent to Congress for ratification. The Bush administration "deactivated" the signature in 2002, announcing it did not intend to abide by the obligations of signatories, and signed bilateral agreements with dozens of countries preventing them from handing US citizens over to the court.
The US opposition was based on the concern that the court could unfairly prosecute American soldiers abroad, and on wariness of giving up sovereignty to an international body.
"The major fear was that a court which could not be controlled by the US ... might be used politically to harass American military people," says John Washburn of the American Non-Governmental Organization Coalition for the International Criminal Court. "Added to that are sovereignty issues, questions about the dislike of international organizations, and the tendency of international organizations to be influenced by those who didn't like the US."
Mr. Newton says the US feared that too much power would be centered in the court. "It opens the possibility, however slight, that the court could be misused for political reasons." But he adds, "Court supporters point out that it's been very judicious and careful and not politicized."
The Bush administration softened its stance toward the court and refrained from using its veto power when the UN Security Council referred the situation in Darfur to the ICC. Many observers expect the Obama administration to take a more conciliatory tone toward the court.