WHEN the International Criminal Court (ICC) struggled into being, its well-wishers were unsure how long this fragile creature would survive, let alone if it would vindicate its creators' hopes of dishing out just deserts to tyrants.


As the court's reputation grows, so does the number of countries that have signed up—104 at the last count. They include all the main European states. Japan, which will become its biggest donor by far, is expected to join later this year. But the real change in the court's fortunes stems from a gradual shift in America's attitude: it has moved from outright hostility to some cautious signals that, in some parts of the world, it sees the ICC as useful.

In the court's early days, the administration devoted huge energy to limiting the risk of American citizens being hauled in. Using threats to hold back economic or military aid, it cajoled about 100 states into signing bilateral accords to keep Americans out of the court's grip. Under these deals, countries vowed that Americans would be immune from prosecution for atrocities committed on their soil—and would in no event be sent to the ICC.

John Bolton, America's erstwhile ambassador to the UN, hailed his country's decision in May 2002 to pull out of the ICC (not to be confused with the World Court, also in The Hague) as the “happiest moment” of his government career. Tom DeLay, the former Republican House majority leader, lambasted it as a “kangaroo court...a shady amalgam of every bad idea ever cooked up for world government”. President George Bush called it a “foreign court” where “unaccountable judges and prosecutors can pull our troops or diplomats up for trial”.

Despite the court's repeated assurances, American congressmen and officials feared that the world's sole superpower would become the target of politically-motivated prosecutions.

Although some fears remain, the tone has undoubtedly changed. Mr Bush recently waived restrictions on military aid to 21 countries, and curbs on economic aid to a further 14, despite their refusal to sign bilateral immunity deals. Senator John McCain, a Republican presidential hopeful, has said he wants to see the United States in the ICC. In an article in the Washington Post, he and a former senator, Bob Dole, urged America and its allies “to use their intelligence assets, including satellite technology” to help the ICC in Darfur.

John Bellinger, chief legal adviser to Condoleezza Rice in the State Department, has been the driving force behind the change of attitude. He thinks the campaign against the court undermines broader American aims, such as ending impunity for the worst crimes. “Divisiveness over the ICC distracts from our ability to pursue these common goals,” he has said. “We do acknowledge that it has a role to play.”

Ms Rice has herself urged a softer line, saying America was “shooting [itself] in the foot” by imposing sanctions on those unwilling to sign bilateral immunity deals. Many such states were old American allies who reacted by moving closer to China.

The first sign of a shift came with America's surprise decision not to veto the Security Council's referral of Darfur to the court in March 2005. When Serge Brammertz, the ICC's deputy chief prosecutor, was appointed to head the UN's inquiry into the murder of Rafik Hariri, Lebanon's former prime minister, nine months later, not a grumble was heard from America. Nor did it object when the Security Council voted last summer to transfer Charles Taylor, a former Liberian president, to the ICC's premises in The Hague for trial. And America's ambassador to Uganda has been urging support for the ICC's prosecution of the Lord's Resistance Army rebels, despite criticism from local community leaders who claim that the threat of arrest is impeding the peace process.

On their own, these signals may not amount to much. But together they suggest at least the beginnings of a change of heart. Mixed messages are still coming out of Washington; but the vitriol has gone.

As well as sensing that it may have something to gain from using the court, the Bush administration seems also to have been convinced that the risk of America or Americans being placed in the dock is less than originally feared. Administration officials were impressed by the court's carefully reasoned rejection of the hundreds of allegations it has received regarding America's role in Iraq—including suggestions that it was guilty of aggression or even genocide.

Luis Moreno-Ocampo, the court's chief prosecutor, argued as follows: first, the war involved states (Iraq and America) that are not members and therefore lie outside the court's jurisdiction, unless the UN Security Council (on which America has a veto) decides otherwise. Second, the court intervenes only when the home country fails to. America has already put some of its own soldiers on trial for crimes committed in Iraq.

Third, the crime of “aggression” is still undefined and thus cannot be applied. Fourth, Mr Moreno-Ocampo found no evidence to substantiate a charge of genocide, defined in the court's statutes as an “intent to destroy, in whole or in part, a national, ethical, racial or religious group”, or a crime against humanity, defined as “a widespread or systematic attack directed against any civilian population”. And though he did find evidence of isolated cases of rape, inhuman treatment and “wilful killing” of civilians, they were not sufficiently widespread to meet the threshold of gravity required.

Huge problems still lie ahead for the court, whose “leniency” towards America may disappoint some members. But it is off the danger list. “We have no more concerns about the court's vulnerability,” says Philippe Kirsch, its (Canadian) president.

Even though polls suggest that two out of three Americans favour joining the ICC, America is unlikely to sign up any time soon. The court has been so demonised by the Bush administration (and before that, so quibbled at by the Clinton White House) that it would take years to convince Congress to accept it. But court officials are privately making a bold prediction: one day, America will swallow all its doubts and join.