Understanding US Opposition to the ICC
It was suggested in Chapter 4 that the United States might have ratified the Rome Statute if the only means of referring a situation to the Court was through a UN Security Council resolution. This will of course remain a 'what if' question. What is certain is that such a court would not have been as revolutionary as the one created by the Rome Statute, nor would it have been greeted as enthusiastically by other states. The fact that sixty states (the number needed to bring the Court into being) were willing to ratify the Rome Statute so quickly (by 11 April 2002) and way ahead of many expectations is symbolic of its appeal. The time needed to reach that point took US officials by surprise and caused the Bush administration to rethink the option of an antiratification campaign, the planning of which had been interrupted by the 9/11 attacks.1 Since then states have continued to ratify the Rome Treaty despite intense US opposition to the ICC. A court tied to the Security Council may have gained US support but that statute would have been tainted by the charge of 'selective justice' and consequently it would not have been as popular. Nevertheless, the possibility that the United States could have supported a permanent if not independent court does suggest that Schabas is right when he writes that US opposition to the ICC is 'all about the Security Council'.2
To leave the analysis there, however, is to leave it incomplete. Clearly, the United States opposes the ICC because it cannot control when and where international criminal justice is done. The more penetrating question, however, is this: what is it about America that makes it demand such a privilege? This question takes on added salience when one compares the US position to that of its traditional democratic allies on the Security Council, the UK and France. As noted in Chapter 4, the UK played a pivotal role in the creation of an independent court. Its decision to join the like-minded group of states helped give the campaign for an independent court political credibility.3 While
1 Washington Working Group on the ICC, 'Status of ICC Legislation and Administration
Review in the US, 2001 Year End Report'.
2 Schabas, 'United States Hostility to the International Criminal Court', 701–20.
3 Elizabeth Wilmshurst, 'Jurisdiction of the Court', in Roy Lee (ed.), The International Crimi-
nal Court. The Making of the Rome Statute. Issues, Negotiations, Results (The Hague: Kluwer Law