United States hostility to the International Criminal Court: it's all about the Security Council

The now abundant literature on the hostility of the United States towards the International Criminal Court speaks to the litany of criticisms invoked by Washington, from the vulnerability of American nationals to prosecution to such issues as the lack of trial by jury. But these so-called shortcomings are also features of the international tribunals to which the United States has accorded enthusiastic support, from Nuremberg and Tokyo to the more recent generation. Had the 1994 draft of the International Law Commission remained more or less intact, it is likely that today the United States would be a keen supporter of the Court. The distinctions between the 1994 draft and the final version of the Rome Statute unlock the mystery of United States opposition. At the heart of the changes during the four-year drafting process is the relationship between the Court and Security Council. The ILC had conceived of what was in effect a permanent ad hoc tribunal, perfectly subordinate to the Security Council and interlocked with the Charter of the United Nations. But the drafters adjusted this conception, with the result that the Court has significant independence from the Security Council, notably with respect to the triggering of prosecutions, the deferral of cases and the definition of aggression.