By Adrià Rivera
One of the most gruesome legacies of the War on Terror launched by George W. Bush was the creation of black sites in Afghanistan, but also in Eastern Europe including Poland, Romania and Lithuania. In these places, CIA officials systematically tortured suspected members of Al-Qaeda and the Taliban. Many of those individuals were eventually transferred to Guantanamo and were deprived of liberty without due process. Abroad and in the US many stood up against these practices, described by Human Rights Watch Executive Director Kenneth Roth as “a stain on the United States’ reputation.”
Obama put an end to torture as he was of the view that the US had “compromised … [its] basic values by using torture to interrogate our enemies, and detaining individuals in a way that ran counter to the rule of law.” However, he sought to turn over a new leaf without rendering justice to victims. As stated by Attorney General Eric Holder, he would not prosecute officials who had “acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.”
But American officials who participated in committing acts of torture could still be held accountable. Indeed, even if the US did not ratify the 1998 Rome Statute of the International Criminal Court (ICC), the ICC can undertake prosecutions over acts amounting to war crimes, crimes against humanity and genocide when allegedly committed in the territory of a party to the treaty or by its nationals.
For example, Afghanistan ratified the Rome Statute in February 2003, giving jurisdiction to the Court from 1 May 2003 onwards, including acts committed by foreign forces – such as US officials – in the country. This is also the case for Lithuania, Romania and Poland.
In 2007, former Prosecutor of the ICC Moreno Ocampo opened preliminary examinations in Afghanistan. Article 15 of the Statute allows the Prosecutor to do so when he deems the crimes allegedly committed are of sufficient gravity and when the State is unable or unwilling to investigate.
From 2007 to 2011, when Ocampo ended his mandate as Chief of the Prosecutor’s Office, the focus in the preliminary examination public reports had been put on the insurgent forces, comprising the Taliban, as the majority of killings were attributed to them were due to suicide and IED attacks.
It was implied that the principle of gravity should be applied in connection with the number of victims of alleged crimes. In his last report on Afghanistan in 2011, instead of mentioning allegations of torture by US officials, Ocampo timidly pointed to pro-government forces without naming the CIA.
For all his efforts, Ocampo’s work as Chief Prosecutor of the ICC remained controversial. During his tenure, investigations focused on Africa, leaving aside grave human rights violations where US interests were at stake, such as in occupied Palestine, Iraq and Afghanistan.
As a consequence, the African Union became more and more hostile to the Court, and in 2016, Gambia, South Africa and Burundi announced that they were leaving the Rome Statute. The arguments of AU were summarised by General Prosecutor of Rwanda when he said, “There is not a single case at the ICC that does not deserve to be there. But there are many cases that belong there, that aren’t there.”
Prosecutor Fotou Besouda, herself Gambian, shifted approaches when she took over. In her latest report on Afghanistan in 2016, Bensouda explicitly identified CIA activities in Afghanistan as war crimes. The acts of torture, she maintained, were grave enough to merit an investigation. According to Bensouda, American investigations of the CIA failed to bring about either indictments or prosecutions. Because the US was unwilling to prosecute, she argued that the Court had jurisdiction.
Today, Bensouda’s investigation is in its final stage. This year, the prosecutor must decide whether to ask the pre-trial chamber of the ICC to start a formal investigation. If the pre-trial chamber is of the same opinion, Bensouda would be authorized to issue arrest warrants against US officials who allegedly committed war crimes in Afghanistan.
However, it is unlikely that any US official will appear in front of a judge at The Hague. Indeed it appears that the US will not cooperate with the Court if Bensouda asks for the arrest of several CIA members.
Nevertheless, this could have serious political consequences. Firstly, President Trump would likely start a fierce campaign against the Court, as George W Bush did in the first days of the ICC. His administration had indeed signed a myriad of anti-ICC bilateral agreements with foreign governments.
Bensouda’s decision would also put an end to a period of cooperation between the ICC and US initiated by Obama. During his Administration, the US was keen on cooperating with the Court when it came to arrest leaders of armed groups wanted by the ICC, like Bosco Ntaganda, who delivered himself to the US Embassy in Rwanda, or Dominic Ongwen, captured by US Special Forces in Central African Republic. However, it is difficult to imagine that Obama would have acted similarly in respect to the extradition of CIA officials to the Hague as he gave immunity to the same people Bensouda might prosecute.
The US might also encourage the adoption of Security Council resolutions boycotting the work of the tribunal like it did in the past in 2002 and 2003 when the Council gave immunity for acts committed by UN peacekeepers from non-member states of the Rome Statute for a year. Trump might also look to defer investigations with a Security Council resolution, something the Rome Statute allows to.
But, any action taken in the Security Council would put the UK and France in a compromised position, since supporting such restrictions of the ICC would go against the work of a treaty-based body they helped to create. Historically, European states have been very supportive of the ICC. The budget of the Court, which amounts to 130 million euros for 2016, does not receive contributions from non members states of the Rome Statute, like the US, and is mostly financed by European states, being the first four contributors with Japan: Germany (14,9 million euros), France (11,3 million euros) and the UK (10,4 million euros). Nevertheless, Bensouda’s decision to prosecute Americans officials could force European states to retract their support to the ICC, both financially and politically.
Another consequence of the ICC prosecuting American officials would be that they would no longer be able to travel to state parties to the Rome Statute out of fear of being detained. This happened recently to Tzipi Livni, a former Israeli foreign minister, who had to cancel her flight to Brussels over fears that she would be arrested for war crimes. Gina Cheri Haspel, who ran black sites during Bush Administration and has been appointed by President Trump as new Deputy Director of the CIA, could face similar issues if the ICC were to prosecute her.
But more importantly, the ICC would be sending a strong message to the Trump Administration regarding the new President’s intention to reopen black sites. In that case, the US would have to take into account the legal consequences of using torture again as a systematic well-established policy with domestic legal backing.
Whatever the reaction of the United States might be, the ICC’s prosecution of American officials would show that wrongdoers are not always Africans and that strong powers can also be held accountable for inhuman acts. This would be a very important step for the ICC in regaining some of its lost legitimacy in the eyes of African states who lost faith in the fairness of international criminal justice. Otherwise, if Bensouda decided not to investigate alleged tortures committed by the CIA officials, the ICC might face a severe legitimacy crisis from which it might never recover.