Cracks in the International Criminal Court

"The International Criminal Court-established by an international treaty and operating since 2002 in The Hague-is under assault from within. South Africa, Burundi and Gambia have announced their intent to withdraw from the ICC (the first members to do so), and other African states, such as Kenya, are also on the brink.

When 'nonaligned' nations begin deserting any international organization, it surely is in real trouble. But for reasons that have been clear since the Statute of Rome creating the ICC was negotiated, it has never been in America's interest to see the court succeed. We should hope the African exodus continues.

The ostensible trigger for the withdrawal is that many African nations are unwilling to arrest and remand to the ICC Sudan's President Omar al-Bashir, accused of genocide and war crimes, when he enters their sovereign territory. There is hardly a less sympathetic figure on the planet, outside of Islamic State and al Qaeda. However, the issue is emphatically not whether one favors 'justice' for international wrongdoers, but whether the ICC-with its inherent illegitimacy-could ever be the right vehicle for the job...

The U.S. removed its signature from the Rome Statute in 2002, and even Barack Obama never re-signed, knowing that Senate ratification was impossible-Americans up to the president himself remain at risk of ICC prosecution if U.S. personnel are alleged to commit offenses on a member state's territory.

Russia, China and India are the most prominent among nearly 70 other nations that have not become members, although something called 'Palestine' has joined. This is hardly the trajectory of a viable international institution...

The Rome Statute's actual danger is less the court than its prosecutor, which, as Americans understand the separation of powers, is not a judicial function but an executive one. Next to the power to wage war, prosecutorial authority is the most-potent, most-feared responsibility in any executive's arsenal.

In the case of the ICC, its ability to prosecute democratically elected officials and their military commanders for allegations of war crimes or crimes against humanity could undercut the most fundamental responsibility of any government, the power of self-defense. This power, lodged in the ICC's prosecutor, is what Africans are really protesting, and also why the U.S. will not join the ICC in the imaginable future...

No wonder the ICC is well on the way to becoming yet another embarrassment like the International Court of Justice or the U.N. Human Rights Council."