The International Criminal Court is examining the U.S. for possible war crimes committed in Afghanistan, a move that some experts believe is unjustified and could undermine the tribunal’s work.
The ICC prosecutor’s latest annual report alleges that “members of the US military in Afghanistan used so-called ‘enhanced interrogation techniques’ against conflict-related detainees,” which could amount to the war crimes of “cruel treatment, torture or outrages upon personal dignity as defined under international jurisprudence.” (See full excerpts below.)
According to NYU law professor Ryan Goodman, writing in Just Security, the ICC’s examination of U.S. detention operations appears to have reached an advanced phase and “crossed over the important threshold of a finding that there is a reasonable basis to believe U.S. forces committed war crimes within the jurisdiction of the Court.”
The court is now at the stage of weighing the gravity of the alleged U.S. war crimes, and whether America’s own system of investigations and willingness to prosecute (“national proceedings”) are genuine.
“Whatever one’s views regarding U.S. detention policy in Afghanistan from 2003-2008,” writes Ryan Vogel, professor at the Chicago-Kent College of Law, “the alleged U.S. conduct is surely not what the world had in mind when it established the ICC to address ‘the most serious crimes of concern to the international community as a whole.'”
The ICC, argues Vogel, who formerly served in the office of the U.S. Secretary of Defense, was “designed to end impunity for the most egregious and shocking breaches of the law,” and “it is hard to see how alleged detainee abuse by U.S. forces meets that standard.”
“The Prosecutor appears to have spent valuable and finite resources pushing an examination of the United States,” writes Vogel. The prosecutor “risks irreparably harming the ICC’s important relationship with the United States, while accomplishing virtually nothing in return, aside from (hollowly) demonstrating that the ICC intends to take cases outside of Africa.”
Excerpts from the prosecutor’s 2014 annual report, released this week:
94. The Office has been assessing available information relating to the alleged abuse of detainees by international forces within the temporal jurisdiction of the Court. In particular, the alleged torture or ill-treatment of conflict-related detainees by US armed forces in Afghanistan in the period 2003-2008 forms another potential case identified by the Office. In accordance with the Presidential Directive of 7 February 2002, Taliban detainees were denied the status of prisoner of war under article 4 of the Third Geneva Convention but were required to be treated humanely. In this context, the information available suggests that between May 2003 and June 2004, members of the US military in Afghanistan used so-called “enhanced interrogation techniques” against conflict-related detainees in an effort to improve the level of actionable intelligence obtained from interrogations. The development and implementation of such techniques is documented inter alia in declassified US Government documents released to the public, including Department of Defense reports as well as the US Senate Armed Services Committee’s inquiry. These reports describe interrogation techniques approved for use as including food deprivation, deprivation of clothing, environmental manipulation, sleep adjustment, use of individual fears, use of stress positions, sensory deprivation (deprivation of light and sound), and sensory overstimulation.
95. Certain of the enhanced interrogation techniques apparently approved by US senior commanders in Afghanistan in the period from February 2003 through June 2004, could, depending on the severity and duration of their use, amount to cruel treatment, torture or outrages upon personal dignity as defined under international jurisprudence. In addition, there is information available that interrogators allegedly committed abuses that were outside the scope of any approved techniques, such as severe beating, especially beating on the soles of the feet, suspension by the wrists, and threats to shoot or kill.
96. While continuing to assess the seriousness and reliability of such allegations, the Office is analysing the relevance and genuineness of national proceedings by the competent national authorities for the alleged conduct described above as well as the gravity of the alleged crimes.
102. The Office will continue to analyse allegations of crimes committed in Afghanistan, and to assess the admissibility of the potential cases identified above in order to reach a decision on whether to seek authorization from the Pre-Trial Chamber to open an investigation of the situation in Afghanistan pursuant to article 15(3) of the Statute.