The International Criminal Court (ICC) began work on 1 July - but without the United States.

The court, the first in the world, has the right to prosecute against war crimes and crimes against humanity.

It also has the power to try individuals for crimes committed after 1 July anywhere in the world.

Click here to watch the full interview

In a special HARDtalk programme Ruth Wedgwood, Law professor at Yale University and Michael Birnbaum QC, Human rights barrister debated what benefits the ICC could deliver for international security and law.

Principals

Ruth Wedgwood argued that the ICC could prevent the military from doing their job properly.

How do you design the court so it can prosecute for massacres

Ruth Wedgwood

She said: "How do you design the court so it can prosecute for massacres, for the kind of grotesque crimes that Pol Pot committed or Rwanda or Bosnia and not inhibit responsible militaries from what they feel they need to do to be effective."

But Michael Birnbaum QC, human rights barrister said that the principal of people being held accountable if they have committed a major crime, is what is important here.

He said: "A fundamental principal of this court is that there's no immunity not even for a head of state or a diplomat -why should there be immunity for Americans or American soldiers? This is the question I think the world is asking."

Tough decisions

America has expressed strong reservations that individuals could be held responsible for major war crimes.

A fundamental principal of this court is that there's no immunity

Michael Birnbaum

They have asked the Security Council to exempt from the court all peace keeping troops saving in UN missions.

Ms Wedgwood expressed concern that the ICC could inhibit soldiers who in the heat of battle have tough, split second decisions to make.

She said: "In practice when you're trying to decide how to stop Slobodan Milosevic's troops form marauding through the Albanian, Kosovo villages you may not have very many options on how to do that."

"I do think that if you have to worry constantly that good faith differences of judgement may be criminalised it could inhibit your efficacy."

And she added that soldiers should not face prosecution for simply following orders.

She said: "By definition we're not going to ourselves prosecute a navy pilot who carries out the mission we told him to which we think is a lawful mission."

Genuine concerns

Mr Birnbaum said that the court would not adversely affect American sovereignty in dealing with criminal justice.

The court is a court of last resort

Michael Birnbaum

He said: "All of this argument that our boys are going to be up before the International Criminal Court in The Hague misses the point that the court is a court of last resort. It won't have any jurisdiction at all in cases where the country of nationality....is able and willing to prosecute."

He went on to argue that what the Americans are most concerned by is their lack of veto on decisions.

He said: "What they really wanted was for the Security Council to have the ultimate decision to as to whether a case might proceed so that they could have a veto on that case."

"Really if that were to be conceded then it would not be an International Criminal court, it would be an American International Criminal Court and that you can't have, it's not worth having."

But Ms Wedgwood made it clear that America has real, genuine concerns which should not be dismissed.

We've all promised to be pure and virginal tomorrow

Ruth Wedgwood

She said: "It's telling that countries are not willing to allow the court to have retrospective jurisdiction."

"We've all promised to be pure and virginal tomorrow, but not in the past."

"I do think both sides are talking past each other. You think it's paranoia, we think you're deaf."

You can watch the HARDtalk interview in full at the following times:

BBC News 24 (times shown in BST)
Tuesday 9 July 0430, repeated 2230

BBC World (times shown in GMT)
Tuesday 9 July 0430, repeated 0930, 1130, 1630, 1930, 0030