Here
and
Now

opinions

Should ICC intervene over U.S. torture abroad?

24 Comments

The U.S. Senate Intelligence Committee report released in December contains a number of accounts of “enhanced interrogation techniques” used as part of the CIA.’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 (ICC). This means that if the United States does not properly investigate and prosecute these cases, the ICC could step in.

The ICC 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 ICC. Any country can avoid ICC 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 CIA 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 ICC were to step in, would it have a strong case? The ICC 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 ICC only has jurisdiction if U.S. nationals commit crimes in the territory of an ICC state party. That would cover CIA conduct in ICC state parties such as Afghanistan, Poland, Romania, and Lithuania – all believed to have housed secret CIA “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 CIA 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 ICC 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-Qaida 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-Qaida 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 ICC 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 U.S. claims of “armed conflict” – but doing so ironically could make “war crimes” charges inapplicable.

Whether U.S. 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 ICC be able to obtain sufficient evidence to build cases? Technically, since the United States is not party to the ICC’s Rome Statute, it has no legal obligation to cooperate with the court.

The ICC prosecutor recently withdrew charges against Kenyan President Uhuru Kenyatta because the ICC 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 ICC 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 ICC 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 ICC, but does the U.S. 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 ICC exposure to the list.

© The Mark News

©2022 GPlusMedia Inc.

24 Comments
Login to comment

So sad how far the US has fallen and how large its hypocrisy has become.

9 ( +10 / -1 )

What are you guys talking about? Torture is only bad when the bad guys do it. We all know America are the good guys, so it's all ok!

6 ( +8 / -2 )

StrangerlandMay. 10, 2015 - 10:26AM JST What are you guys talking about? Torture is only bad when the bad guys do it. We all know America are the good guys, so it's all ok!

I know you're being sarcastic, but it is depressing just how many people from the U.S. think this way. Or they immediately label all the people being tortured as "terrorists", despite the fact that more than 90% of the detainees at Guantanamo Bay were eventually found to have NO credible links to terrorism.

It is utterly depressing.

9 ( +9 / -0 )

"All the Jack Bauer themed "a bomb is ticking and the shopping mall" scenarios are Hollywood nonsense."

If Burning Bush had a family member captured by terrorists who were threatening to kill him/her, and the police captured one of the terrorists in the group who could give them information that would lead the police to the location where the other terrorists were holding him/her but that terrorist was refusing to give them the info, Burning Bush would just have to hope that the terrorists change their minds.

-11 ( +0 / -11 )

SerranoMay. 10, 2015 - 12:26PM JST If Burning Bush had a family member captured by terrorists who were threatening to kill him/her, and the police captured one of the terrorists in the group who could give them information that would lead the police to the location where the other terrorists were holding him/her but that terrorist was refusing to give them the info, Burning Bush would just have to hope that the terrorists change their minds.

But a far more accurate scenario would be if Burning Bush's family member had been captured by terrorists and instead the police rounded up some random person from the street and wasted time torturing them for 10 years before reluctantly admitting that they got the wrong guy... but not before the desperate tortured person had told them whatever he thought they wanted to hear and resulted in the police running around in circles doing the wrong thing while Burning Bush's family members were beheaded.

Torture just produces what the interrogator wants to hear. Interrogating someone who had nothing to do with terrorism is not only the cruel and inhuman act of a sociopath (or in this case a government full of sociopaths), but is also WORSE than doing nothing.

7 ( +7 / -0 )

What are you guys talking about? Torture is only bad when the bad guys do it. We all know America are the good guys, so it's all ok!

I don't know if that was supposed to be funny, but NO ONE in their right minds agrees with torture, but as Serrano said, if it is used as a last resort in a dire situation to use the Jack Bauer analogy, you would do everything in your power to extract that information, knowing if you don't hundreds, maybe thousands of people would die. So in that sense, it is a good guy vs. a bad guy scenario.

-9 ( +1 / -10 )

NO ONE in their right minds agrees with torture

No one in their right mind agrees with torture.

No one in their right mind agrees with torture.

No one in their right mind agrees with torture.

if it is used as a last resort in a dire situation to use the Jack Bauer analogy, you would do everything in your power to extract that information

Bass, you just agreed with torture.

9 ( +11 / -2 )

The ICC will not intervene for the same reason the UN Security Council gave both the American and the Soviets an absolute veto during the cold war: the ICC does not have the power to force the US to cooperate. Unless and until the US signs on to the ICC and willingly submits to its judgement, the ICC will not be able to act.

The author writes:

"Some commentators have opined on the political wisdom (or lack thereof) of the ICC trying to prosecute U.S. nationals, but I won’t." as if she's taking some sort of higher ethical position, but the reality is there is no quicker way to destroy a budding international legal institution than to put it on a collision course with geopolitical reality. Do you believe in the ICC? Do you want it to succeed? Do you want it to be able to prosecute cases like the incidences of torture discussed? Then what you need to do is to work convince powerful non-signatories like the US to not only sign on but willingly submit to its jurisdiction - not charge head first into a battle you can't possibly win out of a misguided sense of justice.

0 ( +0 / -0 )

What is the definition or torture? "Enhanced interrogation" as was termed is not comparable to conventional torture of decades prior. Terminology is key here, it was a forceful use of power to extract information and perhaps mentally brutal. Physically, I don't think it was "torture" with physical brutality.

That said, I would prefer to be a captive in USA hands as opposed to a U.S. captive in Al-Qaida's hands.

-5 ( +2 / -7 )

I wonder in WW2 if the Nazis knew that they were the bad guys.

There is a Nazi on trial right now, and he has said that he knew that what was happening was wrong.

Perhaps in their society there were people who defended the atrocious actions of their government just as some people defend the use of torture by the US government.

There probably were.

-2 ( +0 / -2 )

The U.S. Doesn't recognise the authority of the ICC over its own citizens. Ain't happening

0 ( +0 / -0 )

In principle yes. although ICC is debatably a good tthing.

0 ( +0 / -0 )

Why don't the Americans just resign from every international body? They only recognise the UN when it suits them, and they certainly won't allow any of their citizens to be tried by the ICC. The US is above such things... they are, after all, the new master race lol

3 ( +4 / -1 )

I don't know if that was supposed to be funny, but NO ONE in their right minds agrees with torture, but as Serrano said, if it is used as a last resort in a dire situation to use the Jack Bauer analogy, you would do everything in your power to extract that information, knowing if you don't hundreds, maybe thousands of people would die. So in that sense, it is a good guy vs. a bad guy scenario.

No, in that sense, it's a matter of lesser of two evils. There's no good guy. Though sometimes there's gotta be a bad guy to topple an even bigger bad guy. Why people so obsessed that there's always have to be a good guy - human history tells us otherwise.

1 ( +2 / -1 )

I would really like to know this. How many people have been for Tortured and how many a terrorist attack has been stopped. None or they would be using this as a fact to justify torture.

3 ( +3 / -0 )

Please differentiate between the right-wing nutjobs in the Republican Party (who needed the mass killings of Iraqi civilians who had done nothing to us), with the Decent Americans who opposed them.

0 ( +1 / -1 )

you just agreed with torture.

No. I don't believe in torture, I believe in coheres interrogation, but for arguments sake, if you want to call it torture and if it saves lives as the ultimate last resort for the sake of PC correctness, then I'm perfectly ok with it.

Please differentiate between the right-wing nutjobs in the Republican Party (who needed the mass killings of Iraqi civilians who had done nothing to us), with the Decent Americans who opposed them.

But you don't have a problem with the death of Iraqis that were butchered and murdered in higher numbers under other Iraqis and the sectarian violence. But it seems liberals don't have a problem glossing over

-2 ( +1 / -3 )

"Why don't the Americans just resign from every international body?"

Because that would make the situation worse in many of those international bodies?

0 ( +1 / -1 )

"“enhanced interrogation techniques” used as part of the CIA.’s interrogation program during the Bush administration" was the George W. Bush-Dick Cheney green light on torture. The only accomplishment of the GOP-Tea? War on the US Constitution. Mission Accomplished.

0 ( +0 / -0 )

If violence at home is wrong, then so is violence abroad.

1 ( +1 / -0 )

The ICC would be made the laughing stock of the world if it tried to put an American on trial. Dozens of countries with dictators they can do nothing about, but they think they can score some low hanging fruit because the US airs its laundry from time to time. Well they clearly don't know who wears the pants in the family.

-1 ( +0 / -1 )

Login to leave a comment

Facebook users

Use your Facebook account to login or register with JapanToday. By doing so, you will also receive an email inviting you to receive our news alerts.

Facebook Connect

Login with your JapanToday account

User registration

Articles, Offers & Useful Resources

A mix of what's trending on our other sites