Justice Denied

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.

MORENO-OCAMPO IS, unfortunately, correct about the scope of his power. The law governing the ICC is set forth in the Rome Statute enacted by the signing nations, and is interpreted in the “Elements of Crimes” rules written by the ICC Preparatory Commission. The principal crimes set forth in the Statute and the Elements are genocide, crimes against humanity (which must be part of a “widespread or systematic attack against any civilian population”), and war crimes (which, again, must be part of a policy or “a large-scale commission of such crimes”). Superficially, this has little to do with ordinary U.S. businessmen and bankers. But the Statute and Elements also specify that criminal responsibility falls on anyone who facilitates one of these crimes or “in any other way contributes to the commission or attempted commission of such a crime. . . [with] knowledge of the intention of the group to commit the crime.” (Art. 25)(3)(d). This could easily encompass those who are aware that a government is committing war crimes, but nevertheless engage in banking or other business relationships with that government.

How does this square with the jurisdictional safeguards that ICC advocates often emphasize in dismissing criticism from U.S. officials? ICC supporters generally make several arguments:

* First, the ICC’s jurisdiction is limited to very serious crimes, such as murder and torture directed on a large scale against civilian populations. For an American to fall within this jurisdiction would require large-scale atrocities. As one Canadian government minister recently declared: “This is not some kind of rogue institution that will target some American GI. Americans have nothing to fear. It’s only the likes of [accused Serb war criminal] Radovan Karadic who need worry.”

* Second, the prosecutor is overseen by a panel of judges, and all are highly credentialed. They will not become tools of a political agenda.

* Third, before charges are filed in the ICC, the home country of the accused will be afforded the opportunity to investigate and prosecute. The ICC can seize jurisdiction only if the home state “is unwilling or unable genuinely to carry out the investigation or prosecution. . . .” This finding of unwillingness would be made by judges of the ICC based on a finding of lack of intent to bring the accused to justice.

* Finally, some ICC supporters quietly make the practical point that American troops are unlikely to be seized from military installations abroad, and that they will not be surrendered from the United States.

Under the broad view of facilitation and criminal complicity taken by prosecutor Moreno-Ocampo, these limitations fairly wilt away. To be sure, the ICC is aimed at adjudicating war crimes and crimes against humanity that are by definition very serious. But the act of complicity dramatically expands the scope of prosecution under these offenses. As described by the ICC statute, a complicit act may be one that on its face seems quite removed from the violence. So, where a regime is widely reported to be engaged in crimes against humanity, trading with government-owned entities might trigger liability if those entities in turn fund the overall government war effort. As a moral matter, it may be a very good thing to stop that sort of trade. It may well be that such trade should be forbidden as a matter of domestic law, or by the U.N. Security Council laying down an embargo. But in the absence of such definitive action by a sovereign state or the Security Council, the ICC prosecutor evidently believes he can still move to punish the trading party.

Americans (and others) should draw even less comfort from the well-credentialed background and high-mindedness of the ICC officials. One need not assume overt political agendas or anti-American sentiment (and I do not) to see the danger in unelected, unrepresentative officials motivated to do justice in a world in which domestic law or the U.N. apparatus itself is often silent. Our own experiences with domestic prosecutors demonstrates how easy it is for prosecutors to creatively shape and extend the law so as to charge and try people whom the prosecutor targets as bad. Our courts occasionally strike down such exercises in prosecutorial creativity as unauthorized extensions of the criminal law. Prosecutor Moreno-Ocampo’s speech demonstrates that he also can see the potential to extend the law to punish what he (and like-minded associates) see as bad conduct. That is not necessarily a soothing thought.

Then there is the right which the United States would have under the Rome Statute to preempt the ICC by conducting its own investigation of the alleged crime. Even if our hypothetical trading businessman or banker were more comfortable with the prospect of American prosecutors and courts investigating and applying the law of international criminal complicity as enunciated by the ICC, that would still be a terrible ordeal. Nor is it clear how realistic it is to expect that the United States could satisfy the ICC of its “willingness” to investigate this crime. Do we have properly worded statutes? If not, we must pass them. Did we exercise discretion properly? If not, the ICC will take back jurisdiction.

Finally, Moreno-Ocampo’s theory of complicity must send a special shudder down the spine of the international banker or executive. We may feel satisfied that as a practical matter American troops are unlikely to be snatched from their bases or extradited from the United States to an ICC tribunal. Indeed, the United States can condition military cooperation with a host country on adequate guarantees that it will not transfer U.S. military personnel to the ICC. But what of the Paris-based American banker who is accused? The practical assurance that American troops are unlikely to be brought before a court in the Hague is absent when one envisions the solitary American executive who would be liable to arrest on an ICC charge in any of the 90-plus countries that have ratified the ICC treaty.

THE UNITED STATES has withdrawn its signature from the ICC, and is trying to enter into a series of bilateral agreements that would prevent ICC signatories from surrendering U.S. personnel to the ICC. To the extent that the United States cannot obtain these bilateral ICC exemptions, the government has the option to protect our service personnel by declining to send them into any country which has not forsworn turning them over to the ICC. Indeed, the American Service-Members’ Protection Act of 2002 forbids the assignment of servicemen and women to peacekeeping operations where the United States is not assured that they will be outside the reach of the ICC. Thus, the military can remain free of the jurisdiction of the ICC, if necessary, by staying out of operations that might fall within the international court’s authority.

Private citizens have a more difficult time. If a multinational corporation is deemed complicit in a war crime, then its senior officials anywhere in the world might be held liable. That means bankers in Brussels or executives in Ecuador could in some circumstances be extradited to the ICC. For these citizens to be sure that doesn’t happen, they would have to withdraw from their foreign postings and return to the United States. That is, at the very least, an unhappy prospect for the commercial and trade interests of the United States.

As the ICC prosecutor’s speech makes clear, this is no idle worry. Before the assembled lawyers in San Francisco, Moreno-Ocampo cited the specific example of atrocities in the Congo as an area of ICC interest. According to the ABA journal, he observed that companies based in over two dozen countries have some connection with illegal exports of natural resources from the Congo, and may therefore have indirectly funded those suspected of international crimes. This suggests that the international prosecutors may already have the concept of business liability on their agenda.

How far will the threat of this liability sweep? The Rome Statute takes a broader definition of accomplice liability than was the case under more traditional international legal principles, such as those employed when the U.N. International Law Commission draft Code of Crimes was promulgated in 1996. The 1996 Code specified that complicity must be “direct and substantial.” The Rome Statute eliminates that requirement. To use the language of Article 25 of the Statute, one can all too easily envision a banker or stockbroker whose company handles foreign government funds being charged as one who in “any other way contributes to the commission [of a crime against humanity]” because public reporting indicates that the particular foreign government is financially supporting military activities that result in atrocities.

So what is the businessman to do? What is his obligation under the ICC to “know his customer” and to know the uses to which his overseas government customer is going to put the businessman’s money–whether that be payment for natural resources or interest on bank deposits? Of course international bankers and brokers customarily operate within the terms of “know your customer” requirements because of various domestic laws against money laundering. These laws often have significant commercial and economic effects, and can carry criminal liability or regulatory sanction. But the key is that they are enacted by domestic governments (often as a consequence of international treaties), are prosecuted under domestic legal systems, and are subject to repeal by domestic legislatures. If such rules come to be laid down de facto by a pattern of pronouncements or prosecutions at the ICC, there will be significant effects on the world economic system, and they will be the product of nothing more accountable than the intentions of supranational prosecutors and judges.

THIS, OF COURSE, is the most important ramification of the broad vision articulated by the ICC chief prosecutor. At the end of the day, the power to prosecute is the power not only to punish past conduct, but also to shape future behavior. The criminal process is the bluntest and most coercive instrument which a sovereign authority can wield to shape the activities of private actors. Most people steer well clear of the criminal line in carrying out their daily business. Therefore, legislatures must calibrate criminal sanctions so as to deter undesirable conduct without chilling legitimate productive behavior.

For that very reason, our own fundamental principles of due process emphasize how cautiously the criminal sanction should be invoked. We do not have common-law or judge-made crimes; we insist that democratically elected legislators enact criminal laws. We construe such laws strictly, resolving ambiguities in favor of the defendant. Our prosecutors are held accountable, either because they are directly elected or because they are appointed by an elected official. In all these ways, we try to hedge the coercive strength of the criminal law so that it does not over-deter or “chill” freedom.

But these limits are absent at the ICC. The scope of the crimes covered by the ICC is fairly elastic; certainly the concept of complicity is. And prosecutor Moreno-Ocampo has demonstrated that he is keenly aware that the threat of prosecution can be used to prod affirmative behavior. It is probably not a coincidence that, in his San Francisco speech, he paired suggestions that he might prosecute corporations with pleas for multinational businesses to assist in financing peace and rehabilitation efforts. Will multinational businesses now feel a new “incentive” to fund good causes and embargo bad governments? Worthy ideals, to be sure. But should such policies be driven simply by the directives or hints of an unfettered ICC prosecutor?

Other than military force, the authority to arrest and prosecute is the most coercive power available to government. The U.N. still reserves the deployment of ultimate force–armed force–to the collective member states acting through the Security Council. Until the ICC, the U.N. reserved deployment of law enforcement power to itself as well, authorizing war crimes tribunals on a case-specific basis. This approach carefully cabins the use of this power, and assures accountability to the U.N.’s constituent states. Now, however, the ICC establishes a free-standing, self-perpetuating organ of coercive sanctions without that accountability. Serious questions would arise even if the ICC self-consciously limited its mandate to those who directly commit atrocities and horrific violence. But prosecutor Moreno-Ocampo’s remarks do not bode well for the exercise of such self-discipline. Although still brand new, the ICC prosecutorial arm is already flexing untried muscles in an effort to stretch its mandate to the limit of the law. If the world community–including those countries that applaud the ICC–does not check this impulse, the result will be a radical shift of authority away from the carefully structured balance of power at the U.N. toward a new species of international player responsible only to its own ideals.

We may not be worried enough about the ICC.

Michael Chertoff is a judge on the Third U.S. Circuit Court of Appeals, in Newark, New Jersey.