The Prosecutor of the International Criminal Court (ICC) announced today that she will file a request with the judges of the Court to open an investigation in Afghanistan, including into allegations that U.S. military and CIA personnel committed acts of torture in connection with the conflict there. This is a big deal that could have significant implications for relations going forward between the U.S., the ICC, and States Parties of the ICC. How did we got to this point, where we are headed, and what exactly does it mean for the U.S. and the ICC?

Afghanistan is a State Party of the ICC and therefore Court has jurisdiction over any Rome Statute crime (war crimes, crimes against humanity, and genocide) committed on the territory of Afghanistan after May, 1 2003. The Court has had a preliminary examination open in Afghanistan for the last ten years, meaning that it has been reviewing both open source material and information submitted to it to determine if there is a reasonable basis to commence a formal investigation. To take this step, the Prosecutor must conclude that there is sufficient evidence of crimes within the time period, that no national jurisdiction is undertaking to investigate and prosecute those crimes itself, that the crimes are sufficiently grave to warrant ICC intervention, and that there are no “interests of justice” that justify a decision not to proceed. The move from a preliminary examination to a formal investigation means that the ICC will begin using its very limited investigative powers to determine if there exists sufficient evidence to seek arrests warrants of individuals for their involvement in crimes.

Although Afghanistan is a State Party, it has not asked for this investigation. In fact, no State Party has, and therefore the Prosecutor has decided to open the investigation proprio motu, on her own authority. As a check on this power to commence an investigation without a request from a State Party or a referral from the UN Security Council, the Rome Statute requires the Prosecutor to seek authorization from the judges of the Court, which is what she announced today she is doing. 

The actual request from the Prosecutor is not yet available – she says it will be filed “in due course” – but she has been issuing regular reports about the progress of the preliminary examination in Afghanistan, which offer significant clues about the focus of her investigation. Although the investigation of U.S. actions will get lots of attention in the coming days, it bears emphasizing that the main focus of the investigation will be Taliban crimes, which constitute the overwhelming majority of Rome Statute crimes committed in Afghanistan in the period under consideration. The last preliminary examination report notes that there is a reasonable basis to believe that the Taliban is responsible for some 17,000 civilian deaths between Jan. 1 2007 and Dec. 31, 2015, and has committed crimes against humanity and war crimes. Specifically, the report finds that the Taliban has engaged in a widespread and systematic attack against a civilian population, namely civilians supporting the Afghan government and/or foreign entities and those opposed to Taliban rule and ideology. Afghan government forces are also in the frame for allegations that between 35 to 50 percent of conflict-related detainees are subject to torture.

And then there is the U.S. Although the U.S. is not a State Party itself of the ICC, the Court asserts jurisdiction over any Rome Statute crimes committed on the territory of Afghanistan during the relevant period, regardless of the nationality of the alleged perpetrator (an assertion of jurisdiction that the U.S. disputes, though one which most states and scholars find to be uncontroversial). The last preliminary examination report from the Prosecutor finds a reasonable basis to believe that U.S. armed forces and CIA personnel subjected individuals being interrogated for information to the war crimes of torture, cruel treatment, and outrages on personal dignity. In addition, the Prosecutor finds that there is evidence of some instances of rape by CIA personnel (likely in connection with the allegations of torture). The numbers are relatively small and the time period is short. The report finds 61 instances of alleged mistreatment by U.S. armed forces and 27 by the CIA, and that a majority of the alleged abuses occurred in 2003-2004, after which the U.S. changed its interrogation practices. (Notably, the report considers but rejects that there exists a reasonable basis to believe that civilian deaths resulting from targeting decisions by international forces amount to war crimes).

Finally, the report notes that although the interrogations by the armed forces occurred on the territory of Afghanistan, the CIA conducted its interrogations in Afghanistan and in black sites in Poland, Lithuania and Romania – all States Parties of the ICC, and therefore also subject to its jurisdiction. (Today’s statement of the Prosecutor says that she will seek authorization to investigate in Afghanistan and other States Parties, indicating that the allegations against U.S. personnel will be contained in her request to the judges).

So, what will happen next? Once the Prosecutor submits her request, a panel of judges from the Pre-Trial chamber will review it, as well as all the supporting evidence, to determine if the conditions for opening an investigation have been satisfied. If they authorize the investigation (and they undoubtedly will, given the low evidentiary threshold at this stage and the nature of the allegations and evidence), then the Prosecutor will commence what will certainly be a difficult, if not nearly impossible, investigation. The ICC has extremely limited investigative powers and is almost entirely dependent on cooperation by states to gather information. In this case, there will be no cooperation from the Afghan government, the Taliban, or the U.S. As a non-State Party, the U.S. is not obligated to cooperate with the ICC, and the American Service-members’ Protection Act largely prohibits the U.S. from voluntarily cooperating. While some alleged victims will be available to be interviewed in other locations, and some evidence of the alleged crimes in Afghanistan and the black sites has been developed and made available by other inquiries, there is no question that it will be extremely difficult for the ICC to develop evidence to prove culpability beyond a reasonable doubt. Expect the investigation to last for years, with very uncertain results.

Why has the Prosecutor acted now, and what does this mean for the U.S.? There are reasons to think that the Prosecutor was not eager to go down this road. After all, the preliminary examination has been open for a decade, even though an investigation could have been requested on largely the same evidence years ago. One year ago, the Prosecutor announced that a decision on Afghanistan was “imminent,” but then continued to delay moving forward. She is not exactly jumping into this one, and for good reason. The ICC has been criticized for doing few cases and having fewer successes, and so the last thing it needs is another investigation that will not likely lead to cases or arrests (even if the Prosecutor finds sufficient evidence to bring charges in Afghanistan, it’s very unlikely that any accused persons will ever get surrendered to the Court).

But the problem is that while the Prosecutor is often strategic in her decisions, she is also subject to the law in the form of the Rome Statute, the Court’s founding treaty, and that law mandates that she commence an investigation if all the pre-conditions have been satisfied. Nothing prevents her from delaying the start of an investigation, but she cannot delay forever. At some point, the legitimacy of the institution requires her to move forward, even if the investigation may not, in other ways, be in the best interests of the Court. Moreover, the Court has also been criticized for focusing its attention on African countries and on weaker powers. While not a reason to open an investigation against a major power, it also makes it difficult to continue stalling when such a power is at the other end.

A fair question is whether the ICC was established to investigate and prosecute crimes such as those alleged against the U.S. in this case. The relatively limited scale of the alleged crimes, the context in which they occurred in the years following 9/11, the fact that such crimes are relatively aberrational for the U.S., and the strong disavowal of the practices that led to the allegations are all in contrast to many of the cases that have been prosecuted by international criminal courts. At the end of the day, the ICC may conclude that while the allegations against U.S. personnel are sufficiently grave to be included in the investigation at this stage, where the question is whether all the crimes alleged in the Afghanistan situation taken together meet the gravity threshold, they are not sufficiently grave to warrant an individual case against U.S. personnel. Certainly the Prosecutor’s policy on case selection and prioritization indicates that she should focus first on the more grave, widespread and enduring crimes that have allegedly been committed by the Taliban and the Afghan government, before even considering the allegations against U.S. personnel.

But several arguments make it difficult for the Court to conclude, at this stage, that its function does not include allegations such as those made against the U.S. First, the Court has interpreted its mandate broadly with respect to gravity, and has prosecuted several small-scale cases. The first prosecution of the Court against Thomas Lubanga was for enlisting and conscripting child soldiers, and recently the Court charged and took a guilty plea from Ahmad Al Mahdi for the destruction of cultural monuments in Mali. Second, torture is without a doubt one of the gravest crimes included in the Rome Statute, and is arguably sufficiently serious even in small numbers to warrant attention. Third, as a major power, the conduct of the U.S. has important ramifications for the practices of other actors around the world. And fourth, as the Prosecutor notes in her last preliminary examination report, the interrogation practices in 2002-2003 were sanctioned by official policy.

Once the investigation starts, there will be a temptation for the U.S. to overreact and return to a stance of complete hostility to the ICC. This would be a mistake. As told by David Bosco in Rough Justice and by others, the U.S. tried this approach in the first years of the Court, but soon the Bush administration concluded that it was in U.S. interests to find ways to cooperate with the Court. Although the U.S. and several other major powers (e.g. Russia and China) are not members of the ICC, 123 states are, including nearly every country in NATO (all except Turkey). The Court is not going anywhere, and many of our allies are subject to its jurisdiction and are legally bound to respect its mandates. Further, the U.S. discovered that it can have much more influence on ICC policy and strategy when it engaged the Court rather than trying to destroy it. And finally, the U.S. concluded that in some cases, such as in Sudan or Libya where the governments were committing massive crimes against their people, ICC attention was warranted. Although the administration will certainly not welcome today’s news from the ICC, it should consider whether it can balance its approach to the Afghanistan investigation on the one hand with a policy towards everything else the ICC does and stands for on the other.

As a final point, given today’s news, the administration should move quickly to appoint an ambassador to lead the State Department’s Office of Global Criminal Justice, a position that was almost cut in this administration, was saved after an outpouring of support from many quarters (including members of Congress), but which remains unfilled. The OGCJ ambassador often takes the lead in engaging with the ICC. Now more than ever, such engagement has become critical.

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