Calling international lawyers: Darfur and the ICC

The live possibility now exists that the United States will face the issue of whether to support, abstain, or veto a move in the Security Council to refer the situation in Darfur to the International Criminal Court for investigation and action.

For a long list of reasons, which I won't go into here, I am firmly opposed to the ICC, and firmly in support of US measures to de-legitimize it. In addition, I am also skeptical about the reflex action of the "international community," so called, to call for tribunals and criminal trials in circumstances where they are not willing to intervene. After all, the Yugoslavia tribunal was the product in no small part of the Clinton administration, along with a large chunk of Europe, wanting something that could be presented to public opinion as "doing something" while, in fact, doing nothing at all.

Tribunals, in other words, are an easy way to salve one's public conscience without committing troops. The leading human rights organizations - Human Rights Watch or Amnesty International, for instance - go along with the charade because they have long since committed themselves to the creation of supposed structures of international justice rather than the actual actions required, in places such as Darfur, to protect human rights; their commitment is rather more to a concept of internationalism than human rights. I think a better idea would be a moratorium on calling for tribunals to act if you are not willing to commit troops - in recognition of the fact that justice is necessarily post hoc, and you don't get to the post unless you do something ante. As a British military lawyer once put it to me, back during the Bosnia war, even Nuremberg was "a lovely hood ornament on the ungainly vehicle that liberated Europe, but it was not a substitute for D-Day." The Wall Street Journal editorial page was, I think, right in saying that the attempt by countries such as France to shift the discussion from intervention to the ICC was yet another instance of bait and switch.

All that said, the practicalities of the moment are that the United States does not have the ability to move the Security Council to intervene - hell, it can't even get Darfur described as genocide, as the experts at the UN have somehow, suddenly rediscovered the specific intent for genocide after years of pooh-poohing it. I am not in favor, myself, of giving into the bait and switch game, abandoning the discussion of genocide and intervention to instead discuss the ICC. It's merely a way to get the pressure off Russia and China and back into the usual UN game of blame the US, this time for resisting the ICC. The ICC - and any tribunal - is about as useful at this point, not even contesting its legitimacy, as a bucket of water in a power plant meltdown. Nonetheless, people I respect, and whose anti-ICC credentials are impeccable - Jack Goldsmith and Lee Casey, for example - have given serious thought to the practical requirement that the US not oppose or abstain from a Security Council referral to the ICC in the matter of Darfur.

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Here is my question for all you international lawyers. Assume for the moment that you represent a client, the United States, which for imperative and, in this exercise, unchallengeable political reasons has concluded that it must support a Security Council resolution referring the Darfur situation to the ICC. You have been asked by your client, the United States, to set out the statements accompanying that assenting vote that will best protect the long term legal position of the United States, in international law, from any future claims that it has assented in some fashion to the operations of the ICC. What is the opinio juris that ought to accompany a yes vote in the Security Council on this matter to protect the United States?