Global Policy Forum

By Elizabeth Becker

A top State Department envoy left for Europe today to try to persuade several governments to ignore a recent European Union compromise on the international criminal court that would exempt only some Americans from prosecution. The envoy, Ambassador Marissa Lino, was headed for London, Paris, Madrid and Rome to try to ensure that no Americans would be prosecuted by the court, which the United States strongly opposes, according to a senior administration official. Last week, the European Union agreed to exempt only American military personnel and diplomats from prosecution.

After strong pressure from the Bush administration, the European Union agreed that individual member governments could sign agreements with the United States giving such limited exemptions.

The court, in The Hague, is the first permanent international institution dedicated to trying cases of genocide and other crimes against humanity. "We think that was a step forward but these were just guidelines," said the senior official. "Those governments are still sovereign nations and we expect they will take into account that there is no reason not to exempt all Americans."

John R. Bolton, the under secretary of state for arms control and international security and the administration's point man for the court, traveled to London and Paris last week to urge those governments to sign broad exemption clauses before the United States takes any military action against Iraq.

But expectations for immediate success are muted, especially after the United States failed in a recent attempt to have American peacekeepers automatically exempted during the annual review of NATO's rules of engagement for the Balkan peacekeeping operations.

After weeks of tense negotiations at the United Nations last summer, the United States won a year's exemption from prosecution by the international court for American peacekeepers. Alone among the industrialized nations, the United States has refused to sign the treaty, saying the court might stage politicially motivated trials of Americans, especially senior leaders, who could be deprived of Constitutional protections.

Originally the European Union said it would devise a unified position, either approving or opposing the American request for exemption. The group stated publicly in September that it would resist what it called "worldwide political pressure" by the United States to misuse the court's Article 98 to win broad exemptions.

But when the nations failed to agree on a single position, the group came up with a narrow compromise that they say protects the integrity of the court. Still, the compromise fails to address the administration's deep concerns about the vulnerability of civilian leaders.

Those fears were stirred in part by legal actions brought against former Secretary of State Henry A. Kissinger in Chilean and American courts, accusing him of aiding in the 1973 coup in Chile and the ensuing 17-year dictatorship of Gen. Augusto Pinochet.

Opponents of the American position say those fears are misplaced. They say the court would have provided greater protection to Mr. Kissinger because it allows defendants to be tried in their own countries.

Indeed, they fear that even the European compromise threatens the integrity of the court. "The premise of the court is universal jurisdiction — that everyone is liable for crimes against humanity," said Sarah Sewall, of the Carr Center for Human Rights at Harvard and editor of a book on the court. "To exempt oneself, especially for a superpower like the United States, undermines the very premise of the court."

The United States hopes to sign agreements with 190 countries exempting all Americans from the reach of the court in their territories. So far, only 13 countries have reached such agreements, including Romania, Israel, Micronesia and Gambia.

Ken Anderson, a professor at the Washington College of Law at American University, said the administration was correct to pursue those broad exemptions because Americans should expect to be tried in their own country under their own laws. "The fundamential issue here is that all Americans ought to be entitled to American constitutional protections, including in this war on terror," he said.

The court held its first assembly last month, moved into offices in the Netherlands and set up a Web site. "We are not going to allow American pressure to turn us into one of history's lost causes, like the League of Nations," said a senior European official whose country supports the court.

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