Here’s what legal mind extraordinaire Lee Casey tells The Corner:
Its a real shame.
As a legal matter, the US doesn’t really need the resolution. The ICC cannot, lawfully, claim authority over the citizens of non-party states because it is, after all, a treaty organization that cannot bind, or derogate from the rights of, states that are not also parties. The claims of some ICC supporters, and the ICC prosecutor, to the contrary are just wrong. If the ICC prosecutor decides to move forward and claim jurisdiction over the US, however, a UN resolution is not likely to stop him. If that happens, the US does not have to submit, and the American Servicemembers protection act authorizes the use of force to protect Americans from the ICC overseas.
In addition, given the astounding success the Pentagon has had in obtaining “Article 98″ agreements (more than 90 so far, under which countries agree not to hand Americans over to the ICC), the UN resolution is less and less relevant — from a practical legal perspective.
However, from the political perspective, the UN resolution was important as an open and undeniable statement that the US would not participate in UN missions unless its rights were respected. I assume they receded because they did not have the votes, and plan to revisit the issue later on. Still, it sticks in the craw a bit.