Is international justice finally finding its footing?

Three of its five veto-wielding members — the United States, Russia, and China — have refused to join the court, yet the Rome Treaty gives the Security Council powerful authority over the court’s decisions whether to investigate a criminal suspect or not.

Scratch your head at this arrangement while considering a further complication: The United States, Russia, and China have been opposed to the court. In Russia and China's case, you could fault them for many things, but inconsistency is not one of them. Washington, however, after years of actively trying to undermine the court, has now made it a vital part of its policy tool box. David Scheffer, the former US ambassador who helped negotiate the court’s existence, says for all intents and purposes the US is a de facto member of the court. Exhibits A and B are the two instances in which the Security Council voted for the ICC to open an investigation, Sudan (with the US abstaining) and Libya (with US backing).

Bias by the court?

Then there are the politics of the court itself, which have been defined — or damaged, depending on your point of view — by its most visible employee: Luis Moreno-Ocampo, the swaggering Argentine lawyer who just ended his term as its first prosecutor.

Under Mr. Moreno-Ocampo, the court investigated seven “situations”— two from Security Council referrals, three based on referrals from member countries, and two based on his own discretion. All seven are situated in Africa, which has led to charges of bias by the court. In fact, the court may may simply need to justify its existence: prosecute the easier cases and prove itself to the nations that pay its bills.

But Moreno-Ocampo’s modus operandi hasn’t won him hordes of allies: his indictment of the Sudanese president, for example, has been criticized as half-baked, and has been ignored by countries the Sudanese president has traveled to. The prosecutor’s brash style didn’t win him friends either, and ICC judges reprimanded him repeatedly, all but telling him to stop letting his mouth run wild.

The built-in checks means that the ICC is beholden to its member nations and subject to Security Council meddling, while at the same time having to prove it can administer independent, impartial justice. As University of Chicago law professor Eric Posner wrote in recent op-ed: “the ICC must constantly convince governments to support it while at the same time avoiding the impression that it is a tool of governments. For all the talk of the ‘global rule of law,’ this is an intensely political process and essentially contradictory.”

The other cases

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