ICC Prosecutor Advances Examination of U.S. Detention Policies in Afghanistan

By Ryan Vogel
Thursday, December 4, 2014, 9:11 AM

As Professors Ryan Goodman and David Bosco have both noted in excellent posts at Just Security and Foreign Policy, respectively, over the past seven years, the International Criminal Court’s (ICC) Prosecutor has quietly but persistently advanced a “preliminary examination” of the conflict in Afghanistan.  Although it has been clear that the United States was one of the subjects of this examination, the Prosecutor had avoided direct references to U.S. forces in public documents. This changed on Tuesday when, for the first time, the Prosecutor’s annual report alleged 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.”

Whatever one’s views regarding U.S. detention policy in Afghanistan from 2003-2008, 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 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.

But even if a case against U.S. forces for alleged detention-related abuses is not dismissed because it is insufficiently grave to meet the thresholds for the ICC to proceed, it also seems questionable for the ICC to pursue such a case for reasons of complementarity (i.e., the principle that the ICC is not to move forward when a State is genuinely able and willing to investigate and prosecute).  The United States has one of the most developed and effective military justice systems in the world, which has the demonstrated ability and willingness to hold its own accountable for violations of the law, including any violations in the context of detention operations.  Indeed, there have not been many issues more thoroughly investigated by the military and U.S. Government in the past decade than that of detainee treatment.  Ironically, the Prosecutor’s report even cites some of these very investigations as evidence of crimes – or worse, evidence of a criminal policy – rather than citing these reports as acknowledgement of accountability measures.

Pursuing a case against the United States also carries certain political risks with very little possibility of an actual successful prosecution of an American.  The United States is not a party to the Rome Statute and has consistently asserted that the ICC does not have jurisdiction over U.S. territory or U.S. persons.  While the Prosecutor may disagree with this legal argument, she is unlikely to accomplish anything more than press releases if she continues to move toward an investigation of the United States.  As a practical matter, the United States would almost certainly never cooperate with the prosecution of Americans, and such cooperation may be precluded by the American Servicemembers’ Protection Act.

For this and other reasons, this case seems like an obvious candidate for prosecutorial discretion.  And yet, the Prosecutor appears to have spent valuable and finite resources pushing an examination of the United States from phase to phase (the Prosecutor’s office is apparently now in Phase III of the preliminary examination) and releasing updates of the examination over the course of almost a decade; with this latest public announcement, she seems to have signaled an intent to continue. But rather than provoke the United States for no good reason, the severely under-resourced and over-worked ICC could build a stronger partnership to make progress on the challenging cases it already has on its docket.

While Professor Goodman is exactly right that this examination is not yet a full investigation and may never come to that, in many ways the damage has already been done.  As David Bosco pointed out previously, the U.S. government vigorously opposed any reference to U.S. forces in a public document, and now the Prosecutor has labeled U.S. forces as “war criminals” on par with Taliban fighters.  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.

Many have supported the United States’ more positive tone toward and collaborative relationship with the ICC in recent years.  Indeed, the United States and the ICC have a number of important goals in common.  But the Prosecutor’s decision to proceed with this multi-year examination of the United States and publicly allege that U.S. forces have committed crimes worthy of the ICC’s limited competence could seriously undermine these positive developments.  One can only imagine how Congress might react if the ICC moves beyond this preliminary examination to a full investigation.  For years, opponents of the ICC have claimed that the Prosecutor was dangerously unchecked and could wreak havoc on sensitive matters of international affairs.  With the aimless and public manner in which this preliminary examination is being conducted, the ICC Prosecutor may now be proving these critics right.

Ryan Vogel is a visiting assistant professor of law at Chicago-Kent College of Law.  Previously, he served in the Office of the Secretary of Defense.  All views are his own and not necessarily those of the Department of Defense.