As part of the ICC’s mixed record, Mr. Newton and Ms. Wald said, the court’s current system for allowing victims to participate in trial proceedings should be clarified and improved.
Some of the questions that have yet to be answered have to do with allowing hundreds of victims seeking access to trials to file motions and question witnesses, Ms. Wald said.
ICC members are required to cooperate with the court, but the court has not been cooperative enough with state parties, Mr. Newton said.
“There are no assurances the court will give them anything - it parachutes in and demands things, but if it has things that can help a country in another case, it’s not required to help,” he said.
Based at The Hague, the ICC has 18 judges and more than 800 staff members, according to its public information office. Last year, its budget was about $135 million, with Japan the largest contributor, followed by Germany, Britain and France.
President Clinton signed the ICC treaty in 2000 but made clear he had no intention of submitting it to Congress for ratification because of concerns that U.S. officials and troops could be prosecuted for political reasons.
President George W. Bush “withdrew” the U.S. signature in 2002, but became more supportive of the court in his second term and helped in its prosecution of Lt. Gen. Bashir.
The court’s highest-profile official has been its chief prosecutor, Luis Moreno-Ocampo, a former federal prosecutor in Argentina who first came to public attention in 1985, when he helped convict five former senior military commanders of mass killings. Later in private practice, he defended victims of human rights violations and controversial figures, such as a priest accused of sexually abusing minors.
William H. Taft, the State Department’s legal adviser during Mr. Bush’s first term, who described himself as an “agnostic” when it comes to the ICC, said Mr. Moreno-Ocampo “has not politicized the court.”
“There have been thousands of complaints filed, including some related to the Iraq war, but he has wisely decided to focus on serious infractions and not get distracted,” Mr. Taft said.
However, Mr. Newton said there has been at least one case with an “appearance of politicization.”
Gen. Bashir’s indictment angered many Africa leaders, and in an apparent effort to calm them down, Mr. Moreno-Ocampo “went out and found a Darfur rebel to charge,” Mr. Newton said.
“The pretrial chamber refused to confirm the warrant of arrest and the charges, the appeals chamber supported that, and the case was dismissed for insufficient evidence,” he added.
Ms. Wald, Mr. Newton and Mr. Taft are members of the American Society of International Law’s task force on U.S. policy toward the ICC.
Questioning whether the court should exist is a “moot point” because it’s an “inescapable reality,” Mr. Newton said.