Analysis: Half a century after Nuremberg, world criminal court opens

The International Criminal Court marks an important development in human rights but US hostility may compromise its effectiveness

Kofi Annan, the UN secretary general, has more than a few calls on his time. Only an event as important as today's launch of the International Criminal Court in The Hague would keep him from New York as the Iraq crisis reaches a climax.

The opening, in the panelled splendour of the Binnenhof building's Old Hall, is being hailed as the most important human rights development in half a century. In front of Queen Beatrix and other dignitaries, 18 judges will be inaugurated into a court that is a direct descendent of the Nuremberg and Tokyo tribunals set up after the Second World War.

The birth of the ICC is taking place despite fierce opposition from the United States. And the timing of today's ceremony, just as the US and Britain prepare to launch military action of undetermined legality against Iraq, is lost on few in The Hague. Edmond Wellenstein, director general of the Dutch task force for the ICC, tried hard yesterday to sweep it aside, saying the ICC event was one "about hope, and fighting impunity. It is not about a cynical coincidence."

He is right in one respect; expectations of the court are high. Sir Adrian Fulford, the British High Court judge who will serve on the ICC, has described it as "an incredibly important development for international justice and world peace." Richard Dicker, director of the justice programme for Human Rights Watch, says: "We believe this to be the most important human rights institution to be created in the last 50 years."

Already, more than 200 potential cases are sitting in the court's sleek modern building in a suburb of The Hague. Each file is numbered and stored away, pending the appointment of a prosecutor to assess it.

But the ICC faces a formidable task in establishing its credibility. Its current home is temporary and does not even have a courtroom; local Dutch courts will have to be borrowed for pre-trial hearings. At present there is a staff of just 44, a budget of only €30m (£20m) and no prospect of holding a full trial for years.

Moreover, the court's very existence is opposed bitterly by Washington, which fears that its soldiers and diplomats will be the object of politically motivated court cases. The US ambassador to The Hague was invited to join the 550 guests at the Binnenhof today (including Bill Rammell, a British Foreign Office minister), but declined. The fact that he replied at all is a positive step since, at one time, the US was threatening that any personnel taken to The Hague would be liberated by force if necessary.

After considerable diplomatic pressure, more than 20 countries signed immunity agreements with Washington, exempting all US citizens from the authority of the court. According to non-governmental organisations, US officials are claiming that the American Servicemembers' Protection Act will cut off assistance to states that have not signed an agreement by 1 July this year.

Whatever the objections from, much of the rest of the world has been waiting for decades for the ICC. To come into existence the court needed the backing of 60 states, a landmark achieved in April despite the best lobbying efforts of the US. Since then a further 29 nations have come on board.

It was during the Nuremberg trials that the idea of a world war crimes court surfaced. In December 1948, the UN General Assembly asked the International Law Commission to look into setting up an "international judicial organ for the trial of persons charged with genocide". There was little progress until the 1990s and the establishment of two ad hoc UN courts to try war crimes in the former Yugoslavia and Rwanda. Meanwhile, there were controversial efforts to prosecute the former Chilean dictator Augusto Pinochet in Spain, and Ariel Sharon, the current Israeli Prime Minister, in Belgium.

The objective of the ICC and the other ad hoc courts is twofold: to provide justice for the victims of genocide and to deter future war criminals by illustrating that, however senior they are, those responsible for atrocities are not immune.

What type of person will fall into the ICC's sights remains unclear. Many war criminals can sleep safely because the court will only be able to hear cases against those accused of crimes after 1 July 2002, when the ICC came into existence legally. The court has jurisdiction over genocide, crimes against humanity and war crimes and over the crime of "aggression", which has yet to be defined legally.

It can take action only if the accused is a national of one of the states that has signed up or if the alleged crime was committed in a signatory state. Moreover, the nations themselves have the first right to try cases; the ICC will step in only if the country is unable or unwilling to do so.

Thus, in the context of potential war crimes in a war in Iraq, Saddam Hussein could not be indicted (Iraq is not a signatory). Asked about possible action against British forces, Sam Muller, the deputy director for common services at the ICC, said London believed that there would be "adequate process based on British procedure" to avoid the court's involvement. Pressed on whether a case could be taken against Tony Blair, on the assumption that the UK was unwilling to try a case against him, Mr Muller refused to comment. Privately, officials say that, while anti-war groups may seek to indict the Prime Minister, they are unlikely to succeed.

The ICC's options will be limited by nations' willingness to hand over suspects. The UN's International Criminal Tribunal for the former Yugoslavia (ICTY) benefited hugely from US pressure on Balkan countries to hand over those indicted of war crimes. The ICC will be much weaker without American goodwill. As one EU diplomat said: "Anyone who thinks the thing through can see that it is not going to be easy to enforce the court's jurisdiction."

There is a wild card too. A court spokeswoman said that decisions on what type of cases to pursue "will be made by the prosecutor". So far, that post is still being wrangled over.

Initially, the ICTY had most success in pursuing those who carried out atrocities rather than their military or political superiors who ordered them. Many, including Mr Dicker of Human Rights Watch, argue that it must concentrate on the big fish, "those with most civilian and military responsibility for genocide, war crimes and crimes against humanity". Other problems have surfaced at the ICTY, most notably inconsistent sentencing. Mr Muller said: "We are working closely with the ICTY to make sure we're able to benefit from their lessons. We want to make new mistakes, not old ones."

Mr Dicker believes today's events could mark an important turning point in the battle against American hostility. "The opponents in the US have vilified the ICC and spread such misinformation, suggesting that innocent US army personnel could be tried by Iraqi or North Korean judges. With the inauguration of British and French judges, amongst others, it will become harder for those suggestions to have any meaning."

Getting the US to accept the court is going to be a long, difficult struggle. One EU diplomat said: "I don't think there is any chance of this US administration changing its mind, but in the future who knows? Our hope is that the ICC will be its own best advocate."

The world of justice

International Criminal Court: Eighteen judges will be inaugurated today in The Hague as the ICC prepares to tackle genocide, crimes against humanity and war crimes. Anyone can file a complaint and a prosecutor (not yet appointed) will decide whether the case goes forward. Although sponsored by the UN, the ICC is independent.

International Court of Justice: Based in The Hague, it rules on cases of international law pursued by nations against each other.

International Criminal Tribunal for the former Yugoslavia: Based in The Hague, the ICTY is an ad hoc tribunal set up in 1993 to prosecute war crimes committed in the region.

International Criminal Tribunal for Rwanda: Based in Arusha, Tanzania, the ICTR has a similar mandate to the ICTY applied to the crimes committed during the ethnic cleansing in Rwanda in the mid-1990s.

European Court of Justice: The court in Luxembourg is the highest authority of the EU, interpreting its laws and forcing member states to comply. Legal action in the court, for example, forced France to lift its import ban on British beef.

European Court of Human Rights: Based in Strasbourg, the court of the Council of Europe oversees the European Convention on Human Rights established in 1950, protecting the fundamental rights of people living in Council of Europe states. Although it has no enforcement powers, its judgments often serve as precedents.

World Trade Organisation Disputes Settlement Body. Adjudicates on trade disputes and rules on whether WTO agreements have been adhered to. Can award compensation (usually taken in retaliatory tariffs) of millions of dollars.