Global Policy Forum

By Barbara Crossette

The European Union, whose 15 members support a permanent International Criminal Court, fears that the Bush administration's active opposition could undermine a campaign to get enough ratifications over the next year to get the tribunal up and running, diplomats say.

The court, created by a treaty adopted three years ago in Rome, must be ratified by 60 national legislatures before it can operate. It would be the first permanent international tribunal to deal with crimes like genocide, war crimes and crimes against humanity. So far, 36 of the 139 nations that signed the treaty have ratified it.

Under the Clinton administration, the United States signed the treaty last Dec. 31, the last possible day to sign without ratifying at the same time. The Bush administration has vowed never to send the treaty to the Senate for ratification, and has asked the United Nations for legal advice on how to withdraw its signature.

Diplomats have been told that the State Department is now conducting a review to determine whether to go beyond that and work actively to reverse international support for the court. In Washington, a State Department official said that a "high-level policy review of the treaty" was under way within the administration.

European diplomats say that they are resigned to American opposition to the court, which Republicans and some leading Democrats are wary of because they fear it could lead to capricious arrests of American officials or members of the armed services abroad. The Clinton administration, knowing the treaty would never pass the Senate, spent more than a year trying unsuccessfully to get other nations to add a clause exempting all Americans from prosecution.

Richard N. Gardner, a former American ambassador in Europe and a State Department official under Democratic administrations, calls the court "a bridge too far" for Americans. In an interview, Mr. Gardner, now a professor of international law at Columbia University, said it was unrealistic to lobby for the court in the United States, "given that the leadership of the Republican Party has migrated from the North to the South, and given that the United States is the world's residual peacekeeper" and thus more exposed to suits. He advocates more effort at ratification of other treaties with less opposition in the United States. In May, Congress passed legislation calling for punishment for nations (other than those in NATO) that support and will use the court. The law, the American Servicemembers' Protection Act, would make it possible for the United States to remove an American physically from the jurisdiction of the court, to be based in The Hague.

Now members of the European Union and other nations are stepping up efforts to dissuade the United States from going beyond opposition to an active campaign to wreck the nascent court through diplomatic pressure. European delegations and individual diplomats have tried to raise the issue in Washington, said Ambassador Pierre Schori of Sweden, which held the rotating presidency of the European Union for the first six months of this year. Sweden ratified the treaty last month.

Mr. Schori said in an interview this week that in talks with Washington, the Europeans have "underlined that the European Union adopted a common position supporting the court."

He added, "We and the other members of the European Union have more than 40,000 military personnel in active peace support missions around the globe, and our military is taught to respect universal humanitarian law, universal human rights and so on and we prosecute those who do not do so."