Global Policy Forum

The European Union has blinked first in a stand-off with the United States over whether Americans can be tried in the new International Criminal Court.

EU foreign ministers meeting in Brussels yesterday approved "guidelines" for member states to reach deals with Washington that would offer immunity from the court (ICC) for US citizens suspected of atrocities.

Under the guidelines, US soldiers serving overseas would be immune from prosecution in the court, while politicians and US officials, including CIA operative, could claim diplomatic immunity. There would also be provisions for the US to try its nationals accused of war crimes, for example, in a US court.

The EU compromise plan is an attempt to end a diplomatic row with Washington over the new war crimes court. But relations have worsened after weeks of transatlantic tension over Iraq and trade issues and it remains to be seen if whether the plan will satisfy the US, which is demanding blanket immunity for Americans.

The EU in May issued an "action plan" promising every support to the new court, which it views as a vital instrument of international law. EU leaders yesterday insisted that its offer to Washington had not compromised the court's powers.

The ICC has begun assembling judges and staff, and is to open for business next spring. Its jurisdiction is to include trying international suspects accused of war crimes, crimes against humanity, or genocide. It has won the backing of close to 80 states.

But the US has refused to ratify the 1998 treaty establishing the court - even though Saddam Hussein is surely a likely candidate for prosecution. The Bush administration, reflecting US conservatives' deep suspicion of international bodies and bureaucrats, has reversed the Clinton administration's backing for the court.

Washington now says that it particularly fears that its soldiers overseas - including peacekeeping forces - would become the targets of politically motivated prosecutions.

It has lobbied ICC signatories hard to sign bilateral "immunity agreements" under which they would agree not to hand any US citizen over to the tribunal, and so far 12 non-EU countries have done so.

The EU in turn, however, had warned countries seeking to become EU members that they must not sign any such treaties, setting the stage for an icy showdown.

Yesterday's deal was meant to offer a way out of the impasse. But diplomats warned that the EU may have done little more than paper over its own serious disagreements on the issue.

EU foreign ministers see the "guidelines" as the basis of resolving the dispute. "If individual states stay within these red lines ... the court will not be undermined," the Danish foreign minister, Per Stig Moeller told a news conference. "There is no concession here, there is no undermining of the ICC."

The agreement opens the way for Britain, Italy and Spain, whose leaders are President George Bush's closest European allies, to strike immunity deals.

But Germany, its relations with the US soured by the anti-American rhetoric of its recent election, remained openly hostile to the principle of keeping Americans out of the court's reach. "People are looking to Europe," the German foreign minister, Joschka Fischer told reporters. "What matters is that the Europeans stand together on the basis of a strengthening of the court's statute. What matters is not to assuage anyone.

"This is very important because the Milosevics and Pinochets of tomorrow will be brought to justice," said Mr Fischer, referring to former authoritarian leaders of Yugoslavia and Chile.

All EU states agree that bilateral immunity deals flout the tribunal's founding treaty. But faced with a possible breakaway by the heavyweights of Britain and Italy, EU diplomats worked flat-out during September to set conditions making such deals possible.

One key condition agreed yesterday limits immunity from the tribunal to US soldiers and officials sent overseas.

Already, under existing accords, soldiers stationed abroad are usually exempt from prosecution in the nation where they are based. But EU nations will also invoke diplomatic immunity agreements for US civilians, officials said - meaning that US politicians, defence department personnel or Central Intelligence Agency employees could also be kept out of the ICC. The EU guidelines also demand a guarantee from the US that Americans accused of abuses will at least be tried in their own country, and they state that there can be no reciprocal immunity for citizens of ICC signatories.

With the US insisting on blanket exemptions for all its nationals, however, it remains to be seen whether it will even accept the EU conditions. "This is putting a brave face on disunity," said one diplomat, who asked not to be named. "For the moment it looks like the EU is unified, but there are fundamental differences that will be exposed as states sign up," he added.

A British diplomat said that London was still considering whether it would strike its own immunity deal with Washington. "I think this is better than I had expected," the Swedish foreign minister, Anna Lindh, said. "I had as a starting point the view that one should under no circumstances allow exemptions at all. But in the face of the risk that several states would enter their own agreements, I believe this offers clear rules on how to keep the ICC."

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