On Tuesday, the Chief Prosecutor of the International Criminal Court announced, in the most explicit and detailed terms to date, that the U.S. treatment of detainees captured in the Afghanistan conflict is under examination by her office. The statement is included in the Office of the Prosecutor’s (OTP) annual “Report on Preliminary Examination Activities,” released on the eve of the Assembly of States Parties this month.

Four caveats should be highlighted up front.

First caveat: close observers of the ICC were already aware of the OTP’s preliminary examination of the actions of U.S. forces. Kevin Jon Heller’s parsed last year’s 2013 annual report which referred to treatment of detainees by “international forces” in addition to other “pro-government forces” and “anti-government armed groups” in Afghanistan. And  David Bosco more recently provided a meticulous account of the Obama administration’s interactions with the Office of the Prosecutor over the ongoing process. This report, however, names the United States explicitly, references some specific U.S. practices, and states that the period under examination is 2003-2008.

Second caveat: the preliminary examination is just that – only “preliminary” and only an “examination.” It is a formal yet internal OTP process to determine whether “there is a reasonable basis to proceed with an investigation.” Indeed, one should be careful not to use the term “investigation” to describe the Prosecutor’s current inquiry into the Afghanistan situation—it is still at the stage that occurs before opening a criminal investigation in the terms of the ICC statute. [For an excellent backgrounder on preliminary examinations in general and a particular one involving U.K. forces in Iraq, see Beth Van Schaack’s earlier post at Just Security.]

Why is this second caveat important? It means the process involves fewer fact-finding powers on the part of the Prosecutor and a very low standard of proof; also the Office of the Prosecutor may be more willing and likely to reverse some of its determinations as new information comes to light during this procedure (see paras. 11 & 84 and footnote 6 of the 2014 report and the Pre-Trial Chamber’s Kenya Article 15 Decision, 2010, paras. 17-69). In particular, the OTP is assessing the degree to which national proceedings are underway with respect to the allegations underlying the examination.  Furthermore, an affirmative determination that there is a reasonable basis to proceed with an investigation is far from a finding of strong evidence of criminal wrongdoing. Nevertheless, the appearance of the latter is surely one issue on the minds of administration officials. David Bosco, for instance, reported that “the U.S. delegation urged the court not to publish the allegations, even in preliminary form. They warned that the world would see any ICC mention of possible American war crimes as evidence of guilt, even if the court never brought a formal case.”

Finally, this caveat also means that for the Court to assert jurisdiction over any of these alleged acts, the situation in Afghanistan would still need to be referred to the Court (for example by a state party), or the Prosecutor would have to decide to exercise her proprio motu power and initiate an investigation herself, subject to approval from a Pre-Trial Chamber.

Third caveat: The Prosecutor also determined that there was no reasonable basis to proceed with an investigation of civilian casualties from the U.S. use of lethal force (specifically including air strikes, night raids, and escalation-of-force incidents). That determination, however, was already effectively announced in the 2013 annual report (see para. 48).

Fourth caveat: It is clear that the bulk of the preliminary examination into Afghanistan involves widespread and systematic crimes committed by anti-government forces, including ongoing deliberate attacks against civilians, the crime against humanity of gender persecution, and the use of children in armed conflict.  The contemporary and “common practice” of torturing and mistreating detainees by Afghan forces is also under examination (see  paras. 85-90).   

With those caveats in mind, let’s delve into what the Prosecutor announced, and then I will highlight four legal issues that the report raises.

Here are the key graphs:

“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.

97. Having analysed the information available on civilian casualties caused by air strikes, “night raids” and escalation-of-force incidents attributed to pro-government forces, the Office assesses that the information available does not provide a reasonable basis to believe that the war crime of intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities pursuant to article 8(2)(e)(i) has been committed. In relation to allegations over proportionality, the Office recalls that the Rome Statute does not contain a provision for the war crime of intentionally launching a disproportionate attack in the context of a non-international armed conflict. Similarly, while the Office has received allegations regarding the recruitment and use of children by Afghan government forces to participate actively in hostilities, the Office has been unable to verify the seriousness of the information received; these allegations remain insufficiently substantiated.”

Here are four issues that this report brings to mind:

1. What stage of the examination process has the US inquiry reached?

The Prosecutor proceeds in 4 phases within any preliminary examination: (1) an initial assessment to analyze the seriousness of information received; (2) a jurisdictional analysis – the formal commencement of an examination involving “a thorough factual and legal assessment” of whether there is “a reasonable basis to believe that the alleged crimes fall within the subject-matter jurisdiction of the Court;” (3) an admissibility determination – assessing whether the gravity of the crimes or prospect of national investigations and prosecutions preclude the need for the ICC to proceed ; (4) prudential considerations — determining whether an investigation would serve the “interests of justice.”

It appears that the examination of U.S. detention operations has reached the third 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. Heller posited that some aspects of the Prosecutor’s Afghanistan examination had already reached this stage in 2013. The 2014 report provides further corroboration specifically with respect to U.S. detention practices. For example, paragraph 96 of the 2014 report states that the Office of the Prosecutor is now “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”—clearly a phase three inquiry. That said, paragraph 96 also states that the Office is “continuing to assess the seriousness and reliability of such allegations”—which sounds like phase two and even phase one.

2. Has the Office of the Prosecutor satisfied itself that the alleged US actions were committed “as part of a plan or policy”?

The OTP is considering whether the war crimes of cruel treatment, torture or outrages upon personal dignity were committed by U.S. forces. Article 8 of the ICC statute places something of a qualification on the jurisdiction of the Court over war crimes. It states that the Court shall have jurisdiction over war crimes “in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.” In 2013, the Prosecutor’s annual report stated that the Office “continues to seek information to determine whether there is any reasonable basis to believe any such alleged acts, which could amount to torture or humiliating and degrading treatment, may have been committed as part of a policy.” That reference to the “as a part of policy” qualification does not appear in the 2014 report. And, on the contrary, the 2014 report highlights elements that indicate the existence of a policy such as the Presidential Directive of 7 February 2002 on the determination of POW status and the senior US commanders’ approval of interrogation techniques.

3. Which detainees in U.S. custody are covered by the examination?

In the 2013 annual report, the Office of the Prosecutor stated that the examination is limited to the following detainees (my emphasis added):

“In relation to allegations of torture and ill-treatment, the OTP has focused on cases of those detainees captured in the context of the armed conflict in Afghanistan, and, short of a sufficient nexus to the latter, does not include other alleged conduct related to the treatment of detainees captured outside of Afghanistan.”

I assume that statement means that some detainees at Guantanamo might be covered: if they were captured in Afghanistan in the context of the armed conflict there and brought to Guantanamo after May 2003 (the date the ICC statute came into effect for Afghanistan). An open question in my mind is whether the statement by the Prosecutor is meant to exclude third-country nationals in U.S. custody who may have been captured outside of Afghanistan and transferred to detention in Bagram or elsewhere in Afghanistan.

4. Will bilateral agreements between the US and Afghanistan preclude the ICC from investigating or prosecuting “U.S. persons”?

One final question that might arise from these proceedings is the legal viability of the bilateral agreement between the United States and Afghanistan regarding the surrender of persons to the International Criminal Court (full text).  Since the case arises out of Afghanistan’s status under the ICC treaty, the United States might try to claim that the bilateral agreement provides US nationals and employees immunity for actions that took place in Afghanistan. I have briefly discussed the legal viability of such article 98 agreements in an  earlier post at Just Security.