Washington Must Act Now, or Risk an ICC Torture Investigation

Washington Must Act Now, or Risk an ICC Torture Investigation

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.

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.

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The UN Human Rights Committee declared in its Fourth Report (COB´s) the US international responsibility because extraterritorial violations of human rights, including torture. Donald Trump can´t react waterboarding or any other ill-treatment practices without impunity. International human rights standards prohibed any kind of torture. Fighting against terrorism or national security plans must avoid that kind of actions!

Why wasn't this pushed out -2-4-6 years ago BEFORE hundreds of DRONE Strikes ordered by Obama? Why not when Bush Jr., lied about weapons of mass destruction? What about 9/11? WHY NOW are you doing this,,, only after the entire Middle East has been torn up and millions of Christian's were killed.

Thanks for the comments, Denise. I hope I can clarify some of the issues you raise:

1) This Voices piece was written in response to the annual report from the Office of the Prosecutor at the ICC (available here: https://www.icc-cpi.int/pages/item.aspx?name=pr1252) released on November 2014 which included the update on the ongoing ICC preliminary investigation into war crimes and crimes against humanity in Afghanistan committed by both pro and anti government forces.
2) The ICC acknowledged the existence of this investigation in 2007. Details here: https://www.icc-cpi.int/afghanistan
3) Separately, the Open Society Foundations has produced two reports on harm to civilians caused by drone strikes - in Pakistan https://www.opensocietyfoundations.org/reports/after-dead-are-counted-us... and in Yemen https://www.opensocietyfoundations.org/reports/death-drone and we have argued for greater accountability in the use of drones by the U.S. and others.
4) The terror attacks of 9/11 would not be covered by the ICC since the U.S. is not a member of the court. However, even if it were a member, the ICC would not have jurisdiction unless the U.S. chose not to prosecute the perpetrators.
5) It is not correct that "millions of Christians" have been killed in the appalling conflicts in the Middle East since the 2003 invasion of Iraq. Estimates of war casualties often vary considerably. But the Iraq Body Count project (https://www.iraqbodycount.org/) estimated total civilian casualties in Iraq from war related violence up to 2016 at 155,923–174,355. The Syrian Centre for Policy Research (http://scpr-syria.org/) estimates total deaths in Syria since 2011 at more than 470,000. Christians made up around 10 per cent of the total 22m population of Syria before the war, and there were around 400,000 Christians in Iraq in 2003.

I hope this is helpful, and we appreciate your concern for the people affected by these terrible conflicts. The Open Society Foundations and its partners is continuing its work to support those affected, in particular refugees who have been forced to flee their homes.

Jonathan Birchall, Communications officer, Open Society Foundations

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