Did the Torture Report Just Open the U.S. Up to ICC Prosecution?

Camp X-Ray, Guantanamo Bay (Photo: AP)

Camp X-Ray, Guantanamo Bay (Photo: AP)

Does the recent ‘torture report’ on CIA ‘enhanced interrogation methods’ leave US citizens vulnerable to prosecution by the International Criminal Court (ICC)? That was the question I was asked to answer in my latest article for the Washington Post’s Monkey Cage, originally posted here.

Dec. 9 saw the much anticipated release of the U.S. Senate’s “torture report,” outlining in harrowing and tragic detail the CIA’s program of “enhanced interrogation techniques” in its “global war on terror.” On Dec. 2, the Office of the Prosecutor at the International Criminal Court also released a report in which it made clear that it was inching closer to opening an official investigation into crimes in Afghanistan – including U.S. interrogation techniques. These developments could very well expose U.S. officials to formal investigation – and potentially prosecution – by the ICC. But is the court truly prepared to confront Washington head-on?

The international justice and human rights world is abuzz with the possibility that accountability for U.S.-sponsored and perpetrated torture and so-called “enhanced interrogation techniques” may finally be at hand. In the span of just a few days, the once naive aspiration that U.S. officials would come under the judicial microscope of the ICC has been resuscitated. However, any move to investigate and prosecute alleged crimes by U.S. citizens in Afghanistan needs to be set within the context of the ICC’s interest in maintaining positive relations with the United States while pushing for accountability for crimes committed by even the most powerful of states.

Despite the United States being a non-member state, no relationship has dominated the court’s first decade as much as that with Washington. The popular narrative, one that the court and its advocates regularly reiterate, is one of consistent struggle and resilient progress. The storyline goes something like this: Despite the United States voting against the creation of the ICC in 1998, in one of his last acts while in office, President Bill Clinton signed the Rome Statute. However, not long after the court became a functioning entity, then-U.S. Under Secretary of State for Arms Control and International Security John Bolton was dispatched to “unsign” the statute, an unprecedented political move. What followed was a series of hostile measures by the United States, including the passage of the American Service-Members Protection Act (or “The Hague Invasion Act”) which prohibited the United States from providing funds to the court and bestowed upon the president the right to use “all necessary measures” to repatriate any U.S. citizen detained by the court. At the same time, the administration successfully employed coercive diplomacy against over a hundred states to ensure that they signed “Bilateral Immunity Agreements,” guaranteeing that they would never surrender a U.S. official or soldier to the ICC.

During President George W. Bush’s second term, relations began to thaw. In 2005, the United States allowed the passage of a U.N. Security Council resolution referring Darfur to the ICC. When President Obama arrived on the scene, relations continued to warm. The United States began actively participating in ICC conferences, identified areas in which it could cooperate with the court and spoke of its “positive engagement”with the ICC. In addition, the State Department expanded its Rewards for Justice Program to include ICC indictees and played an important role in the surrender of Bosco Ntaganda, charged with committing war crimes in the Democratic Republic of Congo, to The Hague.

US President Barack Obama speaks to American troops at Bagram air base, Kabul (Photo: Saul Loeb / AFP / Getty Images)

US President Barack Obama speaks to American troops at Bagram air base, Kabul (Photo: Saul Loeb / AFP / Getty Images)

As David Bosco cogently argues in his book, “Rough Justice,” the ICC has generally sought to accommodate U.S. interests. Seeking to improve its relationship with the world’s most powerful country – and the country with the best surveillance techniques and thus access to the kind of evidence the court needs – prosecutors avoided stepping on Washington’s toes, neither investigating alleged abuses by U.S. officials nor intervening in states where the United States had preexisting political interests. This avoidance of confrontation, however, may be about to change in dramatic fashion.

That allegations of torture by U.S. officials in Afghanistan were mentioned in the ICC prosecutor’s report may seem, at first glance, to be window dressing to assuage the concerns of many that the court is toothless when it comes to confronting powerful states. But behind this unprecedented and explicit mention of potential U.S. culpability is a court that appears more willing than ever to finally push the United States over accountability for international crimes in Afghanistan. However, in the wake of some serious setbacks including the collapse of the case against Kenyan President Uhuru Kenyatta, is the ICC in a position to do so?

There are two lines of thought on whether the ICC should pursue a formal investigation of U.S. officials for their use of torture in Afghanistan. First, there is the argument that the court is in too weak of a position to pursue the prosecution of citizens from great powers. The fear here is that the positive relationship the court worked so hard to earn shouldn’t be sacrificed for a fight that the ICC can’t win. The second viewpoint is that the court is in too weak of a position and thus it must confront abuses from great powers. The weakness of the ICC, in this view, stems from its unwillingness to challenge powerful states and its propensity to focus on weaker states in Africa. Strength will only come when the ICC fulfills its promise to transcend, rather than accommodate, global powers.

Unsurprisingly, U.S. officials aren’t thrilled with the prospect of an ICC investigation. Stephen Rapp, U.S. ambassador-at-large for war crimes issues, responded to the ICC’s report by insisting that, because the United States isn’t a member-state, the court has no right to investigate alleged war crimes committed by its citizens. But this is unlikely to resonate with human rights and international justice advocates, many of whom view it as another reiteration of U.S. exceptionalism.

With the release of the torture report, it will become increasingly difficult for the ICC not to press forward. Expectations that the court confront allegations of international crimes by Western states have never been higher and, as Eugene Kontorovich observes, the torture report “gives significant impetus and ammunition to the ICC’s investigation.” With the CIA’s dirty laundry now airing in the political winds, it will be nearly impossible for the court to reverse course and avoid confronting U.S. abuses in Afghanistan.

Still, advocates of accountability should not get too far ahead of themselves. The gears of justice at the ICC grind notoriously slowly. Moreover, the court’s endgame is not to prosecute U.S. officials. Instead, it is to galvanize domestic accountability for any alleged crimes committed by Western officials. Indeed, it is not within the ICC’s institutional interests to pick a fight it can’t win with the United States or incur the wrath of Washington’s resultant hostility. The prosecutor’s report on Afghanistan is thus not so much a threat to the United States as a signal to take justice for alleged torture seriously. Doing so would require going high up the political food chain, to those in the Bush administration “most responsible” for deploying torture as a means of war. The question is: Will the United States take the opportunity to finally pursue accountability for alleged international crimes committed by its citizens in Afghanistan or not? The world – and the ICC – is watching.

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Afghanistan, International Criminal Court (ICC), International Criminal Justice, International Law, Justice, Torture, United States and tagged . Bookmark the permalink.

67 Responses to Did the Torture Report Just Open the U.S. Up to ICC Prosecution?

  1. Reblogged this on Shake The State and commented:
    I can’t stand torture. I don’t think it is ever okay to hurt someone that badly…and what if you get the wrong person? There are other ways of getting the truth out.

  2. minnesotagirl18464 says:

    I loved this read! We even talked about this in my Human Rights course a month back about Bush’s actions towards Muslims, etc. We all thought he should be tried as a war criminal. Unfortunately, there are some laws with the UN that the US has not signed on for which is sad since sometimes that’ll prevent the ICC or anybody to do anything against them. I hope to see a change now that these reports have come out. Shit needs to happen about all of this and it needs to happen now (well not in a second but you know what I mean).

  3. God, I hope so, but unfortunately not. As you’ve correctly pointed out, the justice would ultimately have to come from within – we all know that will never happen or it would have already.

  4. Jordan says:

    Torture is never the answer to anything. It’s time to act and stop this all together!

  5. Ric Delgado says:

    Sadly, when you’re the biggest bully in town does it even make a difference when people with no power make complaints about your actions? It’s obvious they don’t care about human rights.

  6. irishgelin says:

    There will be a lot of complaining and blame games but unfortunately limited action

  7. the magnitude of torture/enhanced interrogation techniques has been part of law enforcement since day one(1). Even if media knew of it they could/would not publish it. Face fact, we are all completely irrelevant to government. All matters remain unchanged because fear of government retaliation is subconsciously fused in every “living” human.

  8. Too boot propaganda has been scientifically tested with double triple blind clinical methods – proof as viably sound effect/affect is – no living human is available to testify about torture.

  9. baronvonrenteln says:

    Reblogged this on Baron von Renteln and commented:
    Ist kein Staatsanwalt am Internationalen Strafgerichtshof in Den Haag der automatisch zur Aufgabe hat das Völkerrecht und die Konvention von Helsinki 1972, die heutigen Menschenrechte, Europäischen Menschenrechte – EMRK – für den Arbeitgeber, dem Brötchen gebenden Steuerzahler und Wähler verteidigen zu überwachen mit gegebenenfalls automatischer Anklageerhebungspflicht?
    Sind immunisierte Zeitarbeiter (Abgeordnete) befreit vom Internationalen Strafgericht-Gerichtshof (ICC) in Den Haag für private Ausflüge außerhalb der Gesetzgebung in Den USA, der Schweiz, Deutschland, Ukraine usw.?
    Eine grundlegende Änderung des Systemfehlers zum Zweck unerlaubter Übergriffe, Befangenheit im Amt

  10. BPOnerd says:

    Very interesting blog post. It opened up my eyes to the ICC and the U.S. efforts to distance itself from it. I wonder what our founding fathers would think of the ICC as an institution potentially able to try U.S. Citizens.

  11. curiosetta says:

    In a democracy presidents and political parties are representatives of the voters who vote for them. When you vote you are literally demanding these groups act as your ‘representatives’.

    Imagine if we lived in a society where everybody who voted for Bush (and Obama) were told they would be legally accountable for any crimes committed by them during their term in office because they were, after all, doing the bidding of the voters who they represent.

    People would not dare vote because they would know they would eventually end up being jointly charged with torture, theft, murder and other war crimes committed by their ‘representatives’ and be forced to serve time in jail, remortgage their house to help pay for the damage caused and probably be forced to adopt a couple of war orphans as well.

    Perhaps they would try to seek insurance from liability before voting, but no insurance company would dare to insure them because they would also know the chances of a president and political party committing massive crimes and other destructive acts during their term is about 100%

    This little thought experiment tells us just how barbaric and immoral the current system called ‘democracy’ (statism) really is.

    Everybody who is a ‘voter’ has blood on their hands. And if they claim the government was not representing their wishes then they are admitting the government is just a violent mob who are out of control.

    Either way the whole immoral and destructive system belongs in the dark ages and should have been abandoned centuries ago.

  12. engie2313 says:

    Reblogged this on engie2313's Blog.

  13. Sounds like a great opportunity to be patriotically outraged and stage a protest about how much foreigners suck. Insert three or four sovereignty memes and a righteous last-minute bill or two and I can’t see the ICC winning this fight.

  14. mustaphabarki2014 says:

    Reblogged this on Engineering WordPress 2015.

  15. Really interesting article, especially for a non-American reader. Thank you!

  16. longhairedcountryboy says:

    The real torture was watching mothers, fathers, sons, and daughters jump to their deaths from the World Trade Center towers as they burned and eventually imploded on top of more innocent men, women, and children. The statement made by some that “torture is never the answer to anything” is certainly an assertions of one’s perspective. Personally, I don’t think beheading innocent people on camera is the answer to anything either. But I would venture that the families of those killed on 9-11 have a much different perspective on the subject of torture, or enhanced interrogation techniques, or whatever one wants to call it – and understandably so. If you kill my brothers and sisters, and are then plotting to kill my children, I might not have the patience to torture you… but I would torture your accomplice to find you, if that’s what it took. Let’s get real here folks – evil doesn’t play nice, and certainly doesn’t mind if you do.

  17. George Owino says:

    Reblogged this on Young kid with big dreams bursting out their seams. and commented:
    The world is waiting to see if the ICC will gear up to its role and prosecute the US officials. But of course they would rather prosecute a sitting head of a developing state than confront their sponsors. If with all the evidence in the senate’s report they still can’t build a case than they might just as well let the Kenyan Deputy President go since the prosecution is only clutching on straws for evidence.

  18. mumtazsm says:

    Torture been happening for year look at places like gauntanomobay and see the road to many ppl who are held never convicted never tried or charged just there because of he said she said

  19. Reblogged this on Mellissify and commented:

  20. Sactown Gal says:

    I hope so. As a veteran i find their tactics abhorrent and they clearly did not receive the same training, or anything close to it. Shameful.

  21. It’s quite clear by now – at least to those who live outside of the polluted media in the US – that the US has lost its moral compass. And this has been proven to be true for American politicians like G. W. Bush and his Republican administration.

  22. leyland7659 says:

    http://BlueGadfly.com/2014/04/26/we are failing the International Criminal Court
    I know it won’t happen, but I still hope so. To hear Cheney say he would do it all again made me sick. Just as much as Bush smugly saying similar on TV. I offer above link for ref.

  23. Pingback: The US Government’s torture report: power in vulnerability | Perspectives in Development and Evaluation

  24. J Roycroft says:

    Its ok for obama to send Drones that killed innocent women and children. It’s ok because it’s not personal, it’s not torture, just war. Torture is seeing family or friends jumping from a burning tower to be splattered onto the pavement below because two planes flew into them. Thats a torture that never heals. Water boarding a murdering Muslim terrorist that planned the attack on 9/11 is not torture. It worked and lives were saved because of it. No one should be prosecuted for obtaining life saving information that stops more lives from being murdered. Absolutely nothing we have done to obtain that information comes even close to the terror , pain and agony Islamic Muslim terrorists have done to other people.

  25. We’re all terrorists and we don’t even know it yet.

  26. fragilejem says:

    whatever you say J Roycroft, Killing children is war! you’re a fool, but maybe an exceptional one, by the way, the report being referred to is missing 1600 pages,the stuff containing the real torture.

  27. fjiggy says:

    For any other country, yes …. For the US, oh no!

  28. annkelley14 says:

    Reblogged this on Ann'sRazzJazz and commented:
    WOW! A court that appears more willing than ever to finally push the United States over accountability for international crimes in Afghanistan.

  29. Pingback: Did the Torture Report Just Open the U.S. Up to ICC Prosecution? | The Voice for Dj J Watts, TMMG & TMMG Dj's

  30. Pingback: Did the Torture Report Just Open the U.S. Up to ICC Prosecution?

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s