Whatever Happens, the ICC’s Investigation into US Torture in Afghanistan is a Win for the Court

An American military guard looks over detainee cells at a detention facility near Bagram Air Field.(Photo: Dar Yasin / AP)

An American military guard looks over detainee cells at a detention facility near Bagram Air Field.(Photo: Dar Yasin / AP)

It was predicted when the US Senate released its so-called ‘Torture Report’. A few weeks ago, it was reported to be true. And now the Office of the Prosecutor of the International Criminal Court (ICC) has confirmed it. A decision to request an official investigation into war crimes committed in Afghanistan is “imminent”. What this means is that the ICC will finally investigate atrocities committed by the Taliban and Afghan forces. It also, and most remarkably, means the ICC will investigate crimes committed by American forces — particularly allegations of widespread torture against detainees. The momentous nature of this development is worth appreciating. In the history of international justice, never has an international criminal tribunal confronted the alleged crimes of the United States.

There are understandable fears that investigating alleged US war crimes in Afghanistan could end up undermining the ICC, particularly if the incoming administration of Donald Trump adopts malicious and antagonistic policies towards the Court. But here are three possible outcomes (in order of least-to-most likely) of the ICC’s investigation and reasons why they could each be ‘wins’ for the Court.

Outcome 1: The United States Prosecutes Perpetrators of Torture Itself

This would be the best case scenario for the ICC. For years, prosecutors at the Court have signaled to US lawmakers that they could open an investigation into Afghanistan which included US conduct. There has been an ongoing back-and-forth between American and ICC officials on the possibility of opening an investigation. The hope of prosecutors was that this would push US authorities to investigate and prosecute the senior-most perpetrators of these crimes themselves. However, the lack of any meaningful domestic justice and accountability for alleged US-perpetrated torture in Afghanistan forced the ICC’s hand. After including “enhanced interrogations techniques” in their preliminary examination reports, the Court set itself on a path that could only end with two outcomes: 1) the US took the signal seriously and prosecuted senior perpetrators itself; or 2) the ICC would open an investigation. With nothing forthcoming on the former option, the latter was inevitable.

It seems unlikely, although not impossible, that the decision to open an investigation would push the US to finally take accountability for its crimes in Afghanistan seriously. But if the US miraculously decided to do so, it would be a huge win for the ICC and its policy of pursuing “positive complementarity” — the belief that the Court has a role in encouraging and galvanizing domestic justice and accountability for international crimes.

Outcome 2: The ICC Manages to Prosecute American Perpetrators of Torture in The Hague

This is the least likely scenario. The prospect of ever seeing Dick Cheney, Donald Rumsfeld, or John Yoo facing judges in The Hague is virtually non-existent. It is unthinkable that the US or a third-party country would arrest senior American officials and surrender them to The Hague. Moreover, the US retains an archaic law (often referred to as “The Hague Invasion Act”, but actually called the American Servicemembers’ Protection Act) which grants the US President executive authority to use “all necessary measures” to repatriate any American citizen surrendered to the ICC. You can’t make this up: the President is authorized to order an invasion of The Netherlands if any US nationals ended up facing prosecution in The Hague. Further, the US judicial system would never allow itself to be characterized by the media or ICC proponents as “unable and unwilling” to genuinely investigate and prosecute crimes perpetrated by American citizens. Option one — prosecuting them domestically — is vastly more likely. Nevertheless, in the dream world in which the likes of George W. Bush are reprimanded in Scheveningen prison and Washington was ‘okay’ with it, it would almost surely be a win for the ICC. I say almost because the cases would prove to be remarkably difficult, even if the publication of the Torture Report, in addition to the brazen, government-sponsored nature of “enhanced interrogation techniques” under the Bush administration could help prosecutors.

Outcome 3: The United States Refuses to Cooperate or Bring Perpetrators to Account

This is the most likely scenario to transpire. American officials have repeatedly insisted that, because the US is not a member-state of the ICC, the ICC cannot investigate US nationals for alleged crimes committed in Afghanistan or, for that matter, anywhere. This is a patently absurd argument. Following its logic, the ICC would not be able to investigate any citizen of a non-member state irrespective of whether they, for example, detonated a nuclear bomb on civilians or engaged in wide-scale genocidal acts. Moreover, this position, which the US has consistently held since the Rome Statute negotiations, is completely at odds with its own allies. Stephen Rapp, the former US Ambassador at-large for War Crimes Issues, has been very candid it his remarks on the matter, stating that:

At the Rome conference that drafted the ICC statute, the US argued that the court should not have jurisdiction over the actions of the citizens of nonparties.  We lost.  The ICC has territorial jurisdiction, full stop.  If you read our official statements carefully you will see that we still do not legally accept such jurisdiction. When our friends understand what we are saying they react with incredulity…We need to put that argument aside, as wholly unpersuasive to those who would decide the issue. If serious crimes were committed, the winning argument is complementarity, that the US has undertaken a genuine process. This is what those allies who joined us in “coalitions of the willing” need from us—in particular those who hosted some of these sites, and now are obligated to investigate us if we are not doing it ourselves.

The fact that this position is widely unpopular among US allies and ridiculed among legal professionals would be useful for the ICC if the US decides to use it. Indeed, a belligerent response to the ICC’s investigation in Afghanistan would likely improve the ICC’s reputation and legitimacy in the world. And we should expect such a response under a Trump administration, especially if John Bolton is appointed as his Secretary of State.

As I have argued previously, the US has pursued a one-foot-in, one-foot-out ‘policy’ towards the ICC where it engages and cooperates with the Court where it sees fit, and refuses to do so when it doesn’t suit its interests. This arrangement, which has been welcomed, at times even celebrated, by ICC officials, damages the credibility of the institution in the eyes of many. This isn’t to say that the US shouldn’t engage with the ICC — but the combination of its position of selective engagement with the Court, its refusal to seriously consider binding itself to the Rome Statute, and its position and politics on the UN Security Council vis-a-vis the ICC hurts the Court.

It is not simply a coincidental that, at the very same time as US relations with the ICC improved, the relationship between African states and the Court began to deteriorate. When the Bush administration — the same one that will now be under the Court’s scrutiny — sought to isolate and undermine the ICC, other states saw this as a symptom of the Court’s ability to speak law to American and Western power. That the US was so concerned with the ICC that it would spend an inordinate amount of energy trying to destroy it seemed to indicate that the Court was a different breed of international organization. That was useful for an institution which was predicated on the premise of transcending global power politics in the name of justice and accountability. The halfway-house position of the US since around 2005/2006 has contributed to eroding this view of the ICC.

Of course, the effectiveness of the ICC suffers whenever it issues arrest warrants that are unenforced. This is particularly true of actors who are seen as pariahs — the likes of rebel leaders like Joseph Kony or heads of state like Omar al-Bashir. The Court’s effectiveness will also suffer if it issues arrest warrants for Rumseld, Cheney, Yoo, or Bush and they are neither enforced nor lead to domestic investigations and prosecutions. But the institution’s relevance and reputation in global politics could benefit. While we should expect a very sharp and negative response from the US with regards to the ICC’s intervention in Afghanistan, that may not hurt the Court. Such a response would make it harder to argue that the ICC refuses to challenge powerful Western states and the hostile vitriol of the incoming Trump administration will feed the view that Washington is obstructionist and detract from the opinion that the ICC is impotent or too cozy with the US.

What’s Next? We’ll See

Whatever happens in the coming weeks, months, and years, the ICC’s decision to intervene in Afghanistan is a remarkable, historic, and brave move. Challenging global powers that perpetrate international crimes and ignore calls for justice and accountability was always part of the attraction of the Rome Statute system. Now it’s time for the ICC to live up to that promise.

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, Preliminary Examinations, Torture, United States. Bookmark the permalink.

9 Responses to Whatever Happens, the ICC’s Investigation into US Torture in Afghanistan is a Win for the Court

  1. Terry Washington says:

    The best case scenario would be for the US to “clean its own house”, by court martialling or otherwise prosecuting military personnel or CIA operatives known or suspected of torture in Afghanistan. Although unlikely, the sight of “grunts” or “spooks” sitting in the dock at The Hague would be the ultimate disgrace- not just for the military or the Agency (far less for thesoldiers or agents concerned) but for the US as a whole!

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