Justice, like democracy, can be very hard to obtain, but equally hard to resist. For over a decade now, the United States government has declined to prosecute military and intelligence personnel who sanctioned and carried out a well-documented systematic program of torture, secret detention and rendition launched around the world by the CIA after the terror attacks of September 11, 2001. Though President Obama admirably outlawed torture and sought to close the terrorist recruiting tool of Guantanamo Bay prison, his administration lamentably never prosecuted those most responsible for post-2001 detainee abuses. His successor-elect, Donald Trump, who infamously declared waterboarding not “tough enough”, has made clear his intention to bring back torture in the fight against terrorism
But torture remains illegal under U.S. and international law. This week, the Office of the Prosecutor of the International Criminal Court (ICC) delivered a timely reminder of what that means in an annual report to ICC member states that included a review of its long-running “preliminary examination” of the situation in Afghanistan.
In curt legalese, the prosecutor’s office delivered a legal blockbuster. It said it had determined “that there is a reasonable basis to believe” that atrocity crimes had been committed in Afghanistan, including “war crimes of torture and related ill-treatment, by U.S. military forces deployed to Afghanistan and in secret detention facilities operated by the Central Intelligence Agency, principally in the 2003-2004 period, although allegedly continuing in some cases until 2014”.
The prosecutor’s office also accused Afghanistan’s Taliban and allies of war crimes and crimes against humanity, and the Afghan government of using torture and ill-treatment. In the case of the Taliban, the prosecutor’s report recites “numerous attacks on protected objects, including schools, civilian government offices, hospitals, shrines and mosques, and humanitarian organizations.
Not surprisingly, international attention has focused on the findings regarding U.S. personnel, including that the U.S. military “subjected at least 61 detained persons to torture, cruel treatment, [and] outrages upon personal dignity” and that the CIA did the same (with the addition of rape) against 27 detainees—not just in Afghanistan but at CIA-run “black sites” in Lithuania, Poland and Romania.
After initially signing, then unsigning, the United States—along with Russia and China—has refused to ratify the Rome Statute that established the ICC, citing concerns that its soldiers might be targeted by politically-motivated prosecutions around the world. But Afghanistan joined the Court in 2003, and Lithuania, Poland and Romania are also members. The ICC exercises jurisdiction over any crimes committed on the territory of one or more member states, no matter the nationality of the perpetrators.
So, will U.S. personnel allegedly responsible for abuses be charged by the ICC? Should that happen, and should the U.S. fail to hand them over to the court, they would end up at risk of arrest in any of the more than 120 ICC member states—creating a challenge to U.S. global diplomacy.
That could also present enormous political problems for the ICC, given U.S. influence on many of its members. But launching an investigation against U.S. officials would presumably go a long way to answering those who accuse the court of ignoring the crimes of the most powerful states, and of unduly focusing on Africa in particular.
What happens next depends in the first instance on the Office of the Prosecutor, headed by Fatou Bensouda. In ICC procedure, a “preliminary examination” is followed by a decision on whether to request the judges to authorize a full criminal investigation that may lead to charges and a trial in The Hague. Such a decision, which the prosecutor has said can be expected “imminently”, depends on the gravity of the crimes and, importantly, the question of “complementarity”—whether or not an appropriate national court has already taken action.
There is a clear route forward for the U.S. government—and one that we at the Open Society Foundations and other human rights groups have been pushing for some time. First, the outgoing Obama administration must publish the full version of the report on torture of the U.S. Senate Select Committee on Intelligence, that was partially released almost two years ago. Second, the Department of Justice must begin prosecutions of those responsible for systematic torture and detainee abuse. Because the ICC is a court of last resort, genuine U.S. investigations and prosecutions would preclude prosecutions in The Hague. It would reassure the world that, at a time of great uncertainty, the United States government remains committed to the highest standards of professionalism and the rule of law. A proper accounting for criminal conduct in the past is the strongest guarantee it will not happen again.