Because I’m such a strong opponent of the ICC, and because this article by Third U.S. Circuit Court of Appeals judge Michael Chertoff is forWeekly Standard subscribers only (and because I’m benevolent and easily swayed in the morning, before the day descends upon me with the weight of a thousand bags of sand, each one chirping a Ricky Martin song), I’ll excerpt at length:

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.

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 that song go again? — “What the world needs now, is internationally politicized unaccountable judicial activism, sweet internationally politicized unaccountable judicial activism…” My God, how this thing frightens me (lordhelpusandkeepusamen).

To be honest, I don’t even like to think about this “court,” I’m so opposed to it. Hell, I’d even entertain a well-reasoned proposal that calls for removing letters I and C from the English alphabet. Let y and k do some freakin’ work for a change, right? Y mean, yts not lyke we’d myss the fukkyng thyngs.

*Shudder*