Standing shoulder to shoulder doesn't mean giving up our independence

On the International Court, Mr Blair has been robust with George Bush. He must now turn his words into action

Two months ago Jack Straw made a speech at the Brookings Institute in which he argued that differences between Britain and the US were inevitable from time to time. He pointed out that we tend to get much more "twitchy" about differences with America than we do about our manifold arguments with the rest of Europe. He went on to argue that there was no reason to assume that such differences should any more affect the fundamentals of the British-US relationship than is the case with Europe.

Over-optimistic or not, this showed some prescience. At the very least, the speech took out a kind of insurance policy against what have now turned out to be notably testing times for British-American relations. Last week the Government was reeling at its own audacity in stopping short of wholehearted endorsement of President George Bush's demand for the removal of President Yasser Arafat. As if that wasn't enough, the US then decided to veto a UN peacekeeping mandate for Bosnia. It did so in protest against yesterday's inauguration of the International Criminal Court, to which the British Government, like the rest of the EU, is enthusiastically committed, but which the US has resolutely refused to ratify. It isn't exactly surprising that ministers have been heard nervously muttering – in private – the words "fork in the road" about a London-Washington relationship which had been so publicly cemented after 11 September.

That there are differences in the economic sphere is a given. Kyoto and steel tariffs are those most frequently cited. But there is also the matter of a deeply protectionist farm bill currently going through Congress. This isn't at all to ignore the European Common Agricultural Policy, an anti-free trade disgrace, conducted blithely by some of the richest countries in the world at the expense of Third World farmers. But it is to acknowledge that it makes it that much more difficult for the European reformers to confront French resistance to the radical reductions in subsidy which are urgently needed, not least to smooth EU enlargement. What's new is that the strains on foreign policy are beginning to show. Of these, the most immediate is the issue of the International Criminal Court, devised as a standing and permanent form of the ad hoc tribunals set up to try genocide and war crimes in former Yugoslavia and Rwanda. The US stands against the ICC because, despite a raft of impressive safeguards written into its remit, it fears that its enemies may try to use the court to bring politically motivated prosecutions against its citizens. The British Government, among many, many others, believes this won't happen, but that no country in an age of conflict can stand outside international law.

Last week, the British went a long way to try to negotiate with Washington some form of compromise based on Article 16 of the Rome Treaty which set up the ICC. Broadly, the deal would have made clear that for a year initially, and in the frankly unthinkable event of US troops showing the kind of mass, homicidal, indiscipline which could conceivably merit the attentions of the fledgling court, any investigation would be left in the first instance to the US authorities. The provisions already available to the treaty's signatories, would be made available to the US as a non-signatory.

There were high hopes that this would fix the problem, especially since, as Mr Blair pointed out in the Commons yesterday, no peackeeper has been brought before the war crimes tribunal on former Yugoslavia, to which US forces are automatically subject. But it became rapidly clear that the Americans were not seeking a compromise. They were using the Bosnia peacekeeping mandate to make their point, which was an abhorrence of the whole idea of the ICC. And the tactic was a clever one. The impact would be on the small UN police training mission, but unless the issue is resolved at the UN there is likely to be a rapid knock-on effect on the 8,000-strong SFOR presence of peacekeeping troops. At risk, at least in the short term, are not so much the 2,500 American SFOR troops, which Washington has so far said it does not intend to withdraw, but other contingents, like that of Germany, which needs a renewed UN mandate to justify a continued presence, and whose troops are being pre-emptively confined to barracks.

One of the most eloquent defences of the ICC was made last month by a distinguished British QC with extensive experience of human rights law. The QC happened to be Cherie Booth and the lecture was partly an appeal for women judges to be appointed to the Court in response to the rapes which were a central feature of the war crimes in Rwanda and former Yugoslavia, as they have been throughout history.

But in a broader celebration of the Court's birth, Ms Booth also invoked the famous words of Justice Robert Jackson, Chief Prosecutor at the Nuremberg trials, that leaving major war criminals undisturbed to write their memoirs in peace would "mock the dead and make cynics of the living". Her husband now needs to stand firm in the negotiations under way in New York during the 72-hour breathing space the UN Security Council has allotted itself. Yesterday on the Middle East he was heroically optimistic, to say the least, in trying to minimise differences with the US. Though he didn't put it this way, he did so by emphasising the parts of the speech that Secretary of State Colin Powell had a leading hand in – the establishment of the Palestinian state, the eventual withdrawal of Israel to the 1967 borders – at the expense of those that were sprung on him at the last minute, such as the call, in effect, for Arafat's replacement.

But on the decision to ratify the court, he was robust. He now has to translate words into action. As a Permanent Member of the UN Security Council, Britain has a real locus. But it won't be easy. Even though a – say – Major government would almost certainly have ratified the Court, the Opposition, which has a simple policy of backing Washington whatever it says, sees an opportunity for exploiting the differences. There is, too, a balance to be struck between being cowed by US opposition and not driving it still further into unilateralism. But too generous an accommodation with the US on the ICC – tempting as it will be – would compromise UK freedom to draw up and sustain an independent foreign policy.

This isn't to make a fashionable European mistake of patronising the Bush administration, or assuming that it is an ideal-free zone, or exulting in the strains on the transatlantic alliance. But it is to say that it may be a kind of liberation to stand firm on policies over which there are real differences. To admit to a minimum of disagreement where it exists – including on the Middle East – not only helps to reinforce the multilateralists in Washington. It reinforces the credibility of the British Government at home and abroad when it chooses to stand "shoulder to shoulder" with the US.

d.macintyre@independent.co.uk