By Jennifer Trahan
The U.S. Senate Intelligence Committee report released in December contains a number of accounts of “enhanced interrogation techniques” used as part of the C.I.A.’s interrogation program during the Bush administration. Some of the countries where torture is said to have occurred are covered by the jurisdiction of the International Criminal Court (I.C.C.). This means that if the United States does not properly investigate and prosecute these cases, the I.C.C. could step in.
The I.C.C. is a court of last resort – it operates in complement to national courts. If a national system is willing and able to investigate and prosecute a case in good faith, the case can’t be tried at the I.C.C. Any country can avoid I.C.C. exposure for its nationals, then, by undertaking good-faith prosecutions.
U.S. courts are certainly able to prosecute these cases, but willingness is another matter. To date, there has been little inclination to pursue “enhanced interrogation” cases – aside from a handful of lower-level cases related to Abu Ghraib. While an assistant U.S. attorney conducted an earlier investigation into C.I.A. misconduct, the conclusion – that not a single case out of the 101 examined (including two fatalities) should be prosecuted – somewhat strains credulity. The United States needs to re-examine these findings or conduct new investigations in light of current information.
If the I.C.C. were to step in, would it have a strong case?
The I.C.C. has jurisdiction over some (but not all) of the misconduct covered by the Senate report. Because the United States is not a party to the court’s Rome Statute, the I.C.C. only has jurisdiction if U.S. nationals commit crimes in the territory of an I.C.C. state party. That would cover C.I.A. conduct in I.C.C. state parties such as Afghanistan, Poland, Romania, and Lithuania – all believed to have housed secret C.I.A. “black sites.” Conduct in other countries that are not parties to the court, such as Thailand (the location of another presumed black site), Cuba (the location of the Guantanamo Bay detention facilities), and Iraq (the location of the infamous Abu Ghraib prison) is beyond the court’s reach.
The court also has a high gravity threshold. It is designed to try only the most serious cases of concern to the international community. While the cases at issue certainly are serious, and many individuals were detained in Afghanistan (indeed, we know the prosecutor is already preliminarily examining U.S. conduct there), the number held at each C.I.A. black site is much smaller.
The Senate report apparently covers 39 detainees held in various countries. Would the court aggregate gravity (combine situations) to look at these cases as a whole? That is a novel issue. And, even if it did, the total number still may not trigger the court’s threshold, considering that not all 39 instances discussed in the Senate report occurred in states where the court has jurisdiction.
In addition, the I.C.C. is only able to prosecute torture as a crime against humanity or a war crime, not as a freestanding crime. To be a crime against humanity, torture must be part of a “widespread or systematic” attack against a civilian population. Should members of Al Qaeda be considered civilians or belligerents fighting out of uniform? This is a contentious issue, but the United States could make a fair case for the latter, given the armed attack of 9/11 and the ensuing armed conflict in Afghanistan. If members of Al Qaeda are to be considered belligerents, rather than civilians, then the reports of torture cannot be prosecuted as crimes against humanity.
Torture can also constitute a war crime, which the I.C.C. has jurisdiction over – in particular when it is part of a “plan or policy,” which seems to be the situation here. Yet, many take issue with expansive US claims of “armed conflict” – but doing so ironically could make “war crimes” charges inapplicable.
Whether US actions fall within a war or peacetime framework – or a bit of both – is a complex question. Yet, presumably, one or the other framework – and hence one crime or the other – will apply. These issues make any case quite complex.
Finally, the court would have to prove any charges through admissible evidence, meaning it would need to obtain sufficient non-classified information. Currently, only a redacted summary of the Senate report is publicly available. Would the I.C.C. be able to obtain sufficient evidence to build cases? Technically, since the United States is not party to the I.C.C.’s Rome Statute, it has no legal obligation to cooperate with the court.
The I.C.C. prosecutor recently withdrew charges against Kenyan President Uhuru Kenyatta because the I.C.C. was unable to obtain evidence – not because the evidence wasn’t there, but because Kenya, despite being a state party, would not turn it over, or put pressure on key witnesses. Obtaining sufficient evidence, where much of it may be classified, would be a serious consideration.
Some commentators have opined on the political wisdom (or lack thereof) of the I.C.C. trying to prosecute U.S. nationals, but I won’t. Pragmatically, the court depends on state cooperation to function, and this is not always forthcoming. The court is also presently overstretched and facing serious budgetary limitations.
Above all, however, the I.C.C. is a judicial institution, and should be guided by the merits of the cases, showing that the rule of law applies equally to all. It is not clear how much exposure the United States would be subject to before the I.C.C., but does the US want to wait and see?
The risk of exposure should serve as a wake-up call for the United States, motivating it to take seriously its obligations to prosecute torture as a party to the United Nations Convention against Torture. There are many reasons why the Senate Intelligence Committee report demands some form of credible follow-up: add avoiding possible I.C.C. exposure to the list.
Jennifer Trahan is an associate clinical professor of global affairs at NYU School of Professional Studies, and has written widely on issues of international justice and international criminal law. She has served as counsel and of counsel to the International Justice Program of Human Rights Watch; served as Iraq Prosecutions Consultant to the International Center of Transitional Justice; and worked on cases before the Special Court for Sierra Leone and the International Criminal Tribunal for Rwanda.
This article first appeared in TheMarkNews