The Absurd International Criminal Court 
After 10 years and hundreds of millions of dollars, it has completed precisely one trial.

By Eric Posner 
June 10, 2012
WSJ
http://online.wsj.com/article/SB10001424052702303753904577452122153205162.html
Ten years ago, on July 1, 2002, the International Criminal Court (ICC) opened its doors. The treaty that created this new body gave it jurisdiction over genocide, crimes against humanity, and other international offenses committed anywhere in the world, by anyone against anyone. Supporters argued that it would put an end to impunity for dictators and their henchmen, and usher in a new era of international justice.
The court has been a failure. Although it has a staff of more than 700 and an annual budget in excess of $100 million, the ICC has so far completed precisely one trial—that of Thomas Lubanga, a commander in the civil war in Congo. It took three years and ended with a conviction on March 14, 2012. The appeals have not begun. A few other trials are ongoing or set to begin.
Even by the low standards of international tribunals, this performance should raise an eyebrow. What went wrong?
As with any international organization, the court's ability to operate rests on the consent of states. One hundred and twenty-one nations have agreed to the treaty, a number that sounds impressive. But the 121 include few authoritarian countries that employ repression or conduct military operations. Mostly democracies with some semblance of the rule of law have joined. Since the ICC gains jurisdiction over a defendant only if domestic legal institutions fail to investigate international crimes in good faith, most member countries are those least likely to be subject to its jurisdiction.
Yet where the ICC has exercised its authority, its actions have been controversial. Uganda, the Democratic Republic of Congo and the Central African Republic have asked the court to investigate crimes committed by various rebel groups. In all these cases, the court has been careful not to offend governments willing to cooperate with it—but the upshot has been that it has pursued rebels only and not government officials who might be responsible for atrocities committed by the military. 
Even when the court has acted with more independence, it has caused more harm than good. The court's involvement in Uganda's civil war in 2004 may well have helped persuade rebels to temporarily lay down their arms. But the refusal to withdraw its indictments has so far interfered with attempts to make peace with the rebels, who demand amnesty. 
The ICC has also intervened in Kenya, on its own initiative, in the wake of violence that accompanied elections in 2007. Criminal investigations of top-level Kenyan politicians, conducted at a snail's pace, have inflamed tensions in that country but without producing a resolution.
The ICC indictment of Sudanese President Omar al-Bashir in 2009 did nothing to bring peace to that country. Other African countries continue to welcome him to their capitals in violation of their treaty obligations. 
The court also indicted Moammar Gadhafi, whom Libyan forces murdered, and his son Saif Gadhafi, who is being held by one of the many rebel factions in that unhappy country. An impasse has arisen because Libyans have no desire to yield Saif Gadhafi to the comforts of a Dutch jail and would much prefer to execute him. (The ICC cannot impose the death penalty.) 
Meanwhile, African countries accuse the ICC of bias against Africans, as it has never indicted people from any other continent. And few countries have shown much inclination to capture indicted suspects and hand them over to the court.
Why does the International Criminal Court have such difficulty? Unlike a national court, 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 court focuses on Africa because African countries are weak. It operates with incredible slowness because it needs to give the impression to suspicious audiences that it is fair. But because it moves so slowly, it cannot react in a timely manner to fast-changing international events—and it does little to deter dictators, whose life expectancies tend to be short in any event. The upshot is that the court is both distrusted and ineffectual.
The United States was heavily criticized in 2002, when President Bush unsigned the treaty that President Clinton had signed near the end of his term. There were concrete reasons based on national interest to withdraw, however: For example, the U.S. could not prevent the court from targeting its citizens, including soldiers and officials.
Now, with the benefit of hindsight, it is clear that the ICC will serve no country's interests, let alone international justice, whatever that might mean. It is too weak to deter atrocities, end impunity or keep the peace, but it is strong enough to serve as an irritant to international relations.
Mr. Posner, a professor at the University of Chicago Law School, is the author of The Perils of Global Legalism (University of Chicago Press, 2009).