There are four forms of international criminal jurisdiction which are all dependent on political power factors as regards effective criminal prosecution.
Inter-allied courts that are set up by the occupying forces subsequent to a military defeat (»Nuremburg«) offer dependable conditions for effective criminal prosecution, but they are rather the exception. The ad hoc tribunals established by the un Security Council from the beginning of the 1990s for Yugoslavia and Rwanda required from their establishment the constant political support of the permanent members of the Security Council. This applies particularly to cases in which the handing over of war criminals was reluctant and the consequence of strong political pressure.

As regards the International Criminal Court created by the Rome Statute, which independently of individual cases was established as a permanent court and has now initiated its first enquiries (among others, Congo, Uganda, Sudan), criminal prosecution remains fundamentally dependent on this power-political support. At least that applies to cases which must be brought against those in power – but also for cases against states subsequent to civil war situations in relation to which there is a danger of unilateral instrumentalization by the local government. The political link to the un Security Council anchored in the Statute of the International Criminal Court is therefore entirely consistent. However, three great powers – the usa, China and Russia – have not yet signed up.

The US refusal is based primarily on internal political grounds so that no fundamental change of course is to be expected even from a new president. To that extent the International Criminal Court will have to wait at least until a »court-friendly« political climate emerges.
A fourth form of so-called internationalized court has recently emerged which is established by agreement between the un and the relevant state and is headed by a »mixed« panel of judges. In the case of the Khmer Rouge – and their former protector China – the negotiations of the Cambodian government have been deliberately delayed and such concessions made in relation to the conception of the court that effective criminal prosecution threatens to break down. All in all, it is clear that there is no royal road to international criminal jurisdiction and that the related »political« element is not a flaw but rather a necessary condition at present. Since in any case only a few select cases have come to trial over the long term the judicial effect of an international criminal court will rather consist in breaking with the statist understanding of the sovereignty of nation states in favor of the incorporation of international criminal law.