NETHERLANDS: The launching of a war crimes trials process over atrocities in Darfur this week is a rare breakthrough in a bitter struggle between the United States and the International Criminal Court over the future of global justice, writes Chris Stephen
Nervous that its own troops may one day end up in the dock, Washington has been a steadfast opponent of the new court since it opened in 2002.
Originally, the ICC was supposed to be a replacement to the present UN war crimes courts, such as the Hague tribunal now trying Slobodan Milosevic. Also based in The Hague, this new court is supposed to be permanent, unlike the temporary UN tribunals, and with a worldwide brief.
But Washington said no: temporary courts for specific emergencies, such as the horrors of Bosnia or Rwanda, were fine. A permanent institution with the power to overrule individual nation states was wrong.
When the ICC, supported by the European Union, nevertheless opened for business, America went on the offensive.
First, it threatened to pull out its peacekeepers from Bosnia unless they were given immunity from prosecution.
Then it passed a law, the American Service Members Protection Act, giving the US president the theoretical power to send troops to spring any American from an ICC jail.
As there is only one ICC jailhouse - in The Hague - jokers there soon nicknamed this new law the Hague Invasion Act.
But Washington wasn't laughing. While the ICC campaigned around the world for fresh members, the US ran its own campaign - to get immunity deals for Americans. To date the ICC has 99 members, with the arrival last month of the Dominican Republic, while America has 42 states promising to give it immunity.
When Saddam Hussein was captured, the US refused to let the UN or anyone else become involved in his trial. Instead, it wrote the rules of the court itself, including an exemption clause that says that while Iraqis can be tried for war crimes, US and coalition forces are immune.
Last December, the US turned up the heat once more, threatening to withdraw aid from nations refusing to sign immunity deals. Human rights groups are furious, saying Washington's real motivation is simply a desire to avoid justice.
And then came Darfur. Sudan is not a member of the ICC, so when details of murders, rapes and ethnic cleansing on a vast scale came out last year, the new court was powerless. Only the UN could intervene. While the UN itself stalled, the war crimes movement got an unexpected boost from US Secretary of State Colin Powell.
One of his last acts, before handing over to Condoleezza Rice, was to order an independent investigation by a respected American human rights group. The report that landed on his desk screamed one word: genocide. It recorded that more than two million had been "ethnically cleansed" by a militia, the Janjaweed, almost certainly with the connivance of the Sudanese government.
Powell, long seen as a "dove" of the Bush administration, threw his support behind a UN war crimes trial. Hawks in the US administration wanted the UN to simply build a new court - it already has four in operation around the world - to handle Darfur.
But UN Secretary General Kofi Annan said it made more sense for the ICC to do the job - in effect, when you have a fire, why build a new fire engine when a perfectly good one is ready for business? A more self-confident White House might have said no, but these are tough days for Washington. The US is under fire over Guantánamo Bay, over Abu Ghraib, for being soft on torture and for supporting repressive regimes like Uzbekistan.
Having called for the Darfur war crimes trials in the first place, the US knew it would look churlish to turn down trials simply to bash the ICC.
So, in a quiet piece of history, the US abstained, rather than vetoed, the all-important Security Council resolution calling for the ICC to handle the case.
"This is a most significant development," says Richard Dicker, international justice director for Human Rights Watch. "The reason the White House did it is the fact that the US government had been acutely involved. There was no alternative to an ICC referral."
ICC supporters hope that war crimes justice has turned a corner, with their court finally given the worldwide role it craves. But US opposition has not gone away. Should the Darfur trial go badly - should the bad guys walk free or the trial get bogged down - then the US will once again proclaim that war crimes justice, while fine in theory, does not work in practice.
As investigators prepare to fly down to the Sudanese desert this week, they know the stakes in the game of international justice have never been higher.
Chris Stephen is the author of Judgement Day: the Trial of Slobodan Milosevic, published by Grove Atlantic (2004).