While the E.U. system itself is based on the idea that a transparent legal system for mediating conflicts will prevent future conflicts, the E.U. members have been the court’s most vocal champion because they believe the establishment of an international legal system that operates on the individual — not just the nation-state — level will help to create the multipolar world in which Europe has greater power to shape events. Other states such as Brazil and Venezuela support the court for similar reasons: creating a system that binds the regional hegemon to abide by a legal system at the individual level will create an environment in which countries wishing to expand their influence have yet another tool to do so.

Washington had cast a wary eye on the court since serious discussion of its founding began to take shape in the 1990s, but the Bush administration has elevated the level of this skepticism to open hostility. At the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, from which the Rome Statute emerged, the Clinton administration successfully lobbied to weaken the court’s ability to infringe on sovereignty of any state with a functioning legal system and sought to create conditions in which U.S. soldiers and diplomats would be shielded from prosecution. After achieving most of the administration’s goals, President Clinton grudgingly signed the Rome Statute.

President Bush nullified the U.S.’ signature shortly after being sworn in and went to work undermining the I.C.C. With Security Council Resolutions 1422 in 2002 and 1487 in 2003, the Bush administration successfully lobbied for the immunity of personnel operating in any U.N. peacekeeping operations. However, in 2004, the Bush administration did not seek to extend this immunity after allegations of prisoner abuse emerged in Iraq and it was clear the Security Council would not grant the U.S. the exemption. A threatened U.S. veto also secured peacekeeper immunity for non-I.C.C. states in Resolution 1497, authorizing a stability operation to Liberia. Washington also had any reference to the I.C.C. removed from Resolution 1502, which condemned the bombing of the U.N. Headquarters in Baghdad. The most visible way Washington has sought to undermine the I.C.C. has been through bilateral immunity agreements with states that receive military aid from the U.S., with the exemption of N.A.T.O. members and countries providing military support to the operations in Afghanistan and Iraq.

The U.N. investigation in Darfur has allowed supporters of the I.C.C. to put Washington in the uncomfortable position of having to choose between supporting the court or blocking another U.N. Resolution aimed at ending the fighting in Sudan’s western region. Washington has floated a proposal to expand the International Criminal Tribunal for Rwanda (I.C.T.R.) in Tanzania to try those accused of humanitarian crimes in Darfur. All other Security Council members have been cool to this proposal — the U.S. had been pressing for the I.C.T.R. to wrap up its operations until the current debate on Darfur emerged in the end stages of the U.N. genocide investigation, and there is little support for delaying the I.C.T.R. since the I.C.C. has begun operating at The Hague.

The optimal decision from Washington’s vantage would be to abstain from a vote on granting the I.C.C. authority over Darfur, but this would limit the Bush administration’s ability to shape the next Security Council Resolution on Sudan. The U.S. has invested a great deal in ending the country’s North-South civil war, and Washington does not want to forfeit its control in the reconstruction of southern Sudan. The Bush administration would like to insert 10,000 U.N. peacekeepers and 915 international police officers into southern Sudan, as well as to expand the authority of the African Union (A.U.) monitors in Darfur to allow the use of force to protect citizens threatened by either party in the conflict. Without U.S. support, it is unlikely that this authorization will be granted to the A.U. monitors in the final bill.

Can a Judge End a War?

It is not clear that granting the I.C.C. authority to investigate and try individuals in Darfur will do anything to end the conflict; in fact, it may lengthen the fighting by removing the incentive of possible participation in a post-conflict, power-sharing government for those accused by the I.C.C. It is certain that the irregular militias fighting on the side of the government, the janjaweed, have committed war crimes and that those in the Sudanese government who have coordinated with the janjaweed leaders would stand trial as well. However, it is also highly likely that the rebel leaders would be investigated for humanitarian crimes, and some would be found guilty. None of those accused of war crimes would be able to participate in any new government entity that emerges from the conflict, which would only increase the incentive to ramp up the attacks and force a final resolution by eliminating the enemy.

This appears to be the current situation in northern Uganda, where the I.C.C. has refused to halt its investigations of the Lord’s Resistance Army even after the Ugandan government has asked for the court to back away from its investigations until a negotiated settlement is reached between the parties. While it is possible that an I.C.C. investigation would discourage future atrocities by eliminating the current environment of impunity in Darfur, it is also possible that it would encourage both sides of the conflict to perpetuate it indefinitely.