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The International Criminal Court (Cour Pénale Internationale) has issued indictments against two senior Sudanese officials. This is perhaps the most significant action the court has ever taken, and it will be the most controversial.

The ICC must play an international balancing act with this case. Sudan is not a member of the ICC, which creates a huge jurisdictional problem. This case also puts the United States in a difficult position. On the one hand, if the US were to support the ICC, it could claim to be supporting action in Darfur without having to take any actual actions. Pressure is mounting from human rights groups both domestically and internationally for the US to act, and this gives the US an opportunity to appease the groups without exerting any effort.

On the other hand, the US is quite opposed to the ICC; while it was an early supporter of the court, the US withdrew its support on fears of the court being used as a political tool through highly politicized actions against its citizens, particularly its military personal stationed abroad. Also, the lack of formal definitions of some of the crimes left the US uneasy. In the next few days, Washington should give some sort of policy statement regarding the ICC’s indictment. While it is possible the US will restate its past resentment to the court, the US would be wise to improve its international image, especially with respect to its stance on international law, by supporting the ICC’s exertion of jurisdiction in this case.

The ultimate future success of the ICC rests on the outcome of this case. The court will have to legitimize its exercise of jurisdiction to not only the member parties, but to the United Nations and the International Court of Justice. The problem is not for the ICC or the ICJ to find jurisdiction (after all, Nürnberg and the ICTY posed no issue for jurisdiction or legitimacy). The problem for the ICC is to convince the United States and other powers opposed to the court that it is exercising a legitimate function by exerting jurisdiction over a non-party. This task is far more important than the trial of the two defendants itself.