The International Criminal Court is the logical culmination of the process begun in 1945 when Americans, led by Eleanor Roosevelt, promoted the United Nations and the Universal Declaration of Human Rights, which was then adopted by virtually every nation.

The creation of the court was stalled during the cold war, but the United States again played a prominent role in reviving the project and drafting the founding treaty. President Bill Clinton signed the Rome treaty as one of his last acts before he left office.

Early in the new administration, however, President George W. Bush moved against it. He announced that the United States would not ratify the treaty and then took the unprecedented step of withdrawing the United States' signature.

The United States has also launched a campaign to persuade states supporting the court to sign agreements not to surrender U.S. nationals to it. But the U.S. fears are based on a misunderstanding.

The court cannot make a request if the United States is willing to try its nationals in its own courts - or even if the United States believes the allegations to be unfounded. The court is only a fail-safe to try those whose own countries refuse to act.

Yet the U.S. determination to secure these agreements is backed up by intimidation. Countries that refuse to sign are being told that they will not get U.S. military aid. Some 50 countries have already signed.

Now an authoritative legal opinion by James Crawford of Cambridge, Philippe Sands of London University and Ralph Wilde of University College London holds that states which have ratified the ICC treaty are likely to violate international law if they refuse to comply with a surrender request.

The United States is not a party to the Rome treaty, but it could be in breach of the Vienna Convention on the Law of Treaties by making an agreement designed to frustrate it. The U.S. justification for seeking these bilateral agreements rests on Article 98(2) of the Rome Treaty, which does indeed authorize bilateral non-surrender agreements in certain conditions. The intention was to exclude cases where there was a pre-existing agreement covering the status of armed forces.

The standard form of agreement issued by the U.S. government does not meet this test. That is why the European Union adopted a common position inSeptember 2002 against "Article 98 agreements."

No EU country has signed one, and several would-be EU states have courageously refused to, including relatively weak countries like Slovenia, Latvia, Estonia and Croatia.

The threats employed by the United States to secure these bilateral agreements seem disproportionate to any practical benefit.The exemption agreements seem to flout international law merely to show who is master. It is an affront to those Americans who once made their country a beacon of democracy and the rule of law.

The writer is a lawyer who specializes in civil liberty and human rights issues.

Copyright © 2003 the International Herald Tribune

###