IN THE LITANY OF CRITICISM of American foreign policy, one refrain is constant. Americans are accused of showing contempt for international law and the international community by challenging the newly ratified International Criminal Court. Nongovernmental organizations in particular have accused the United States of placing itself above the law by refusing to submit to, and actively campaigning against, ICC jurisdiction. In response, U.S. policymakers have argued that the ICC is a permanent, unaccountable, supranational legal establishment that could put American officials and military personnel at risk of a politicized prosecution for vaguely defined international crimes. Under any view, the ICC is a novelty that challenges our conventional notions of the direct coercive power of international legal institutions.
Much of the debate turns on the scope of the infant ICC's powers. ICC proponents portray the court as a vehicle limited to prosecuting those who have committed horrific atrocities, similar to those now being tried in ad hoc international tribunals in the former Yugoslavia and Rwanda. Who can quarrel with the rightness of bringing torturers and murderers of thousands to justice? At the same time, ICC advocates have tried to soothe fears by pointing to the definition of war crimes and crimes against humanity, which seems to require large scale, systematic violation of basic international norms. These supporters contend that there is no foundation for Defense Department fears that U.S. soldiers might be hailed into court on politicized charges. Implicit--or explicit--is the suggestion that U.S. resistance to the ICC is based on unreasoning American arrogance or, worse, on the self-serving concerns of high-level government actors.
In fact, ICC partisans have dramatically understated the potential power and reach of this new court. More remarkably, American critics may have understated the risks posed by this new permanent tribunal. Because now we have it on very good authority that the ICC need not be--and is not--confined to investigating and punishing the Pol Pots and Idi Amins and other major war criminals of the modern world. Rather, the ICC's own prosecuting authority has expressed a vision of its mission that would target even ordinary private American citizens, such as businessmen and bankers.
Last June, a distinguished Argentine human rights attorney, Luis Moreno-Ocampo, took office as chief prosecutor of the new ICC. Earlier this year, with the ink barely dry on his appointment papers, Moreno-Ocampo unveiled his jurisdictional views in a startling, but not widely reported, address to attorneys attending a conference in San Francisco. According to a report in the American Bar Association Journal and other media sources, Moreno-Ocampo told the audience that officials of multinational corporations could be held accountable before the ICC for directly or indirectly facilitating conduct that leads to violations of international law. So, the ABA journal relates, if companies engaged in trading natural resources pay money to a government that uses it to fund soldiers who commit war crimes, those companies have arguably facilitated war crimes, and their officials could be prosecuted. Against the backdrop of this disturbing specter, Moreno-Ocampo "encouraged" these corporations to cooperate in the effort to eliminate conditions that can lead to atrocities and similar violations.
The implications of this view--emphatically not the prediction of an overwrought critic, but evidently the policy statement of the chief prosecutor--are troubling. First, Moreno-Ocampo's speech confirms that many of the jurisdictional safeguards brandished to rebut criticism of the ICC are illusory. Second, this policy statement suggests that the ICC may be even more of a danger to American businesspeople than it is to American soldiers; and this is a danger that cannot be avoided by simply keeping U.S. troops out of peacekeeping missions in countries that have accepted ICC jurisdiction. Finally, Moreno-Ocampo's remarks imply that the ICC may be willing to use the threat of prosecution as a goad to cooperation from multinational corporations. That strategy would transform the ICC from adjudicator of past crimes to active multinational policymaker--and a policymaker not accountable to the U.N. Security Council or its member states.