The Prosecutor of the International Criminal Court is currently conducting a preliminary examination of crimes in Afghanistan which may well lead to a formal investigation against US nationals. What does this mean and what are the probabilities that US citizens are actually brought to the ICC? This is the analysis of AMICC.
The preliminary examination in Afghanistan started in 2007 and for nine years the Office of the Prosecutor has been conducting a preliminary examination of possible war crimes and crimes against humanity. If the Court decides to proceed, the next step would be to open a formal investigation in Afghanistan that includes interviewing witnesses, taking testimony and gathering forensic evidence, after which a trial might be started.
Afghanistan has been a member of the Court since May 1st 2003, which means that the court has jurisdiction over crimes committed on its territory or by its nationals since that date. The US signed the founding document of the ICC, the Rome Statute, under President Clinton, but George W. Bush deactivated the signature, citing fears that Americans would be unfairly prosecuted for political reasons. But even though the US is not a member of the Court, its nationals might be prosecuted for crimes committed on Afghan territory.
The alleged crimes have been committed during the operation of the US-led coalition against the Taliban and in support of the Afghan military. The Office of the Prosecutor has determined that there is a reasonable basis to believe that all sides of the conflict are responsible for crimes against humanity and war crimes. The investigations will most probably focus on the crimes committed by the Taliban and by the Afghan military. However, the Prosecutor has affirmed that the US-led coalition is also under investigation for alleged war crimes, and more specifically torture and ill-treatment in secret detention facilities operated by the CIA between 2003 and 2004.
The US-led international coalition has also been under investigations for a great number of civilian casualties but the Prosecutor has concluded that the strikes did not target civilians deliberately and therefore could not be classified as war crimes.
ICC’s Prosecutor Fatou Bensouda has concluded that at least 88 detainees have been subjected to torture, cruel treatment, rape and/or outrages upon personal dignity while being in US custody. In addition, the Prosecutor is investigating cases of related CIA interrogations of Afghan nationals in detention facilities in Poland, Romania and Lithuania. These crimes are not isolated cases but were part of the policy of the so-called “enhanced interrogation techniques” approved at senior levels of the US government during the George W. Bush administration. These were mostly put to an end after 2004 but might have continued sporadically up until 2014.
Will US citizens be brought to the ICC?
The International Criminal Court functions as a court of last resort and respects the principle of complementarity. This means that it would not be able to prosecute alleged crimes of US nationals if these are already prosecuted by US courts in good faith. The US has claimed that it has carried out more than 70 trials and close to 200 investigations that have resulted in non-judicial punishment. US State Department spokeswoman Elizabeth Trudeau has praised the US “robust national system of investigation and accountability” and has said that ICC investigations would be unwarranted and inappropriate. However, Bensouda has found that most of the cases that have been investigated so far have been about Iraq and there have been no American prosecutions of cases from Afghanistan that might fall under the jurisdiction of the ICC. Bensouda has also expressed concerns that the review conducted by the Department of Justice of alleged CIA abuses had a limited scope because it investigated only “unauthorized” interrogation techniques. Consequently. only two criminal investigations were conducted and none of them resulted in an indictment because of lack of evidence. Bensouda will have to demonstrate that the small number of investigations and the absence of indictments shows that the US has not fulfilled the requirements of complementarity.
It is unclear when the Prosecutor will announce her decision on whether to start a formal investigation –international law expert David Bosco has claimed that according to “multiple sources,” the announcement will probably come after the elections but before the end of the year.
But even if an investigation is initiated, US citizens may not be brought before the Court because everything depends on the evidence available from interviews with witnesses, testimonials and forensic materials that will be gathered during the investigation. The process is prone to take a long time and will be delayed by the internal mechanisms of the Court that require an approval by a three-judge panel. According to David Bosco, another obstacle to investigations would be the possible reticence of the Afghan government to provide access and support to ICC experts given that its officials will be investigated for war crimes.
And if and when a trial is opened, the defendants will need to be delivered physically to the Court because the ICC does not conduct trials in absentia. This might become another obstacle to prosecution because the US would not easily surrender a citizen to the Court. If that US citizen were to be delivered to the ICC by another state, the US might use the Bilateral Immunity Agreements that the Bush administration has signed with over 100 countries. These BIAs aim to ensure that if there is a request to transfer a US citizen to the Court, this would not be done without the permission of the US. The Rome Statute does not authorize such agreements which violate states’ obligations to the Court, but the US might resort to them if its national is located in another state.
For the Court to be able to complete its functions effectively, it requires the cooperation and good will of states. In the recent case against the Deputy Prime Minister of Kenya Uhuru Kenyatta, the Prosecutor has been forced to withdraw the charges and suspend the case because of the lack of and tampering with evidence, witness intimidation and lack of cooperation by the Kenyan government. Taking into account the reluctance of the US to recognize the legitimacy of the investigations of its citizens by the ICC, it is not impossible that the case ends in a deadlock if there is insufficient political will to cooperate with the Court.
The Rome Statute establishes that the Court should prosecute the individuals who bear the biggest responsibility for a given crime, which would mean that former senior officials might face the risk of prosecution. The Court will almost certainly find it difficult to do this for officials such as George W. Bush. Dick Chaney and directors of the CIA because the US will not make them available to the court for trial.
US officials insist on the principle of state sovereignty maintain that the ICC should not exercise jurisdiction over nationals of nonmember states and would not recognize the legitimacy of the Court if it does so. The Court does respect state sovereignty through the principle of complementarity, but it is fundamentally designed to prosecute the gravest violations of human rights and to ensure justice when national systems fail to deliver it.
The US has been a strong supporter of bringing several cases to the ICC, including Libya and South Sudan which were referred to the Court by the UN Security Council. However, the US cannot expect other countries to comply with the Court, to prosecute senior officials or expect them not to withdraw from the Court if it does not live up to these expectations itself. The US needs to prove that its commitment to international justice is not hypocritical and applies also to its own crimes. And the only way to do this and to ensure that the ICC does not prosecute US citizens is to conduct genuine and effective investigations and trials itself.
It is difficult to predict the reaction of the US government under the administration of Donald Trump if a formal investigation is initiated. he fact that Trump has said he is in favor of harsh interrogation techniques such as waterboarding and may re-authorize their use speaks to how controversial this case might become. The US relationship with the Court that became increasingly friendly during the Obama administration might worsen, but AMICC is determined to maintain and extend American public support for the ICC.