The ICC was created in 1998 to try people who commit international crimes, including war crimes and genocide, when domestic institutions fail to do so. The United States was roundly criticized for wanting to make the Court a tool of the Security Council, to be set up when and only when its members could agree that a judicial approach to a problem of international relations makes sense -- such as the civil war in Yugoslavia and the genocide in Rwanda, for which ad hoc tribunals had been set up. The United States, with some prescience back in 1998, feared that the Court would be used against Americans who were accused of committing international crimes. The U.S. view was rejected and the ICC was given independence, including its own prosecutor, and the right to launch investigations against any ICC member and other states that commit crimes on the territory of ICC members. The United States refused to join the court, though 106 other countries have.

Ten years later, the ICC has turned out to be an African Criminal Court, one called in by national governments in Africa that have wanted international help in dealing with insurgents who have committed atrocities (so far, Uganda, the Democratic Republic of Congo, and the Central African Republic). Fine and good; what one might call a pragmatic adjustment to international realities. All of this good feeling ended when the current prosecutor announced that he sought an indictment of Omar Hassan al-Bashir, the president of Sudan. Even human rights advocates have been made uneasy by this blundering into a delicate situation. Now humanitarian workers in Sudan are at risk, negotiations to resolve the conflict in Darfur are in trouble, and China, Sudan's ally, is deeply annoyed. The prosecutor, you see, was supposed to exercise "political sensitivity," not stage a judicial coup and overthrow a head of state. But why should a prosecutor do that? Remember Ken Starr and Lawrence Walsh? When prosecutors are given independence, they prosecute, political consequences be damned. The whole point of giving the ICC prosecutor independence in the first place was to avoid making the Court a plaything of the great powers, so he could slay the dragons of international illegality wherever they could be found.

Meanwhile, here is an even more delicate situation. News reports suggest that Russians and Georgians alike have committed atrocities in South Ossetia. The ICC has not launched an investigation; the situation is "under analysis." Why not? For one thing, while Georgia is a member of the ICC, Russia is not. So Georgia was not only crushed by Russia; it now faces the prospect of having citizens, perhaps soldiers, perhaps even leaders, being sent off to the Hague for a trial. To be sure, the ICC is not supposed to intervene if Georgia investigates in good faith, but Georgia will probably not do so. Countries in situations like Georgia's rarely do.

Now although Russia is not a member of the ICC, in theory the ICC has jurisdiction over Russia, to the extent that it committed international crimes on the territory of a member -- namely, Georgia. Suppose then that credible evidence shows that Russians committed atrocities, maybe on the orders of generals or, who knows, Vladimir Putin himself. Then it is the duty of other ICC members -- Italy, say -- to arrest Vladimir Putin while he's sunning himself on vacation in Capri and hand him over to the Hague. Good luck, one can only say -- and take a Geiger counter along next time you go out for tea! Maybe the prosecutor will rediscover the merits of political sensitivity.

(Russia apparently will help ethnic Russian citizens of Georgia file claims with the ICC. Russia itself has no power to ask the ICC to act, but Georgians do. Sneaky!)

Meanwhile, here's a question for the weekend. Suppose Georgia had been a member of NATO when Russia invaded its territory earlier this month. Would NATO military forces have honored the treaty obligation and launched a military response even though no one in the west thinks that Georgia is worth World War III? If not, would NATO have been revealed as a meaningless institution? Or should we assume that Russia would not have attacked Georgia in the first place for fear of provoking a military response from NATO?