Editor’s note: Julian Elderfield worked in the Office of the Prosecutor of the International Criminal Court from 2012-2019, including on the Afghanistan investigation. All information contained in this article is drawn from public sources. The article reflects the author’s personal views.
On Sept. 27, 2021, newly elected Prosecutor of the International Criminal Court Karim A. A. Khan QC released a statement signaling his intent to resume his office’s investigation in the Situation in Afghanistan. He announced that his priority would henceforth be the investigation of crimes allegedly committed by the Taliban and Islamic State – Khorasan Province (IS-K). Other crimes, including those allegedly committed by CIA personnel, would be deprioritized.
While the Prosecutor is entitled to exercise his discretion in the selection of cases, the few reasons offered publicly to deprioritize the CIA investigation do not stand up to scrutiny. For this reason, if no further explanation is provided, the decision erodes the standing of the Office of the Prosecutor (OTP) as an independent and impartial body.
The CIA Torture Program
Following President George W. Bush’s post-9/11 authorization of expanded powers for the CIA, the agency arrested, detained, and interrogated approximately 119 alleged Taliban and al-Qaeda fighters and operatives. Interrogations were carried out at ‘black sites’ in Afghanistan, Romania, Lithuania, and Poland, which are States Parties to the Rome Statute of the International Criminal Court (ICC) (and in Morocco, Cuba, and Thailand, which are not States Parties).
From open-source evidence alone, there is a prima facie case that the CIA’s conduct vis-à-vis detainees on the territory of ICC State Parties amounts to the war crimes of torture and cruel treatment pursuant to article 8(2)(c)(i) of the Rome Statute, outrages upon personal dignity pursuant to article 8(2)(c)(ii), and rape and other forms of sexual violence pursuant to article 8(2)(e)(vi).
The same evidence suggests that senior U.S. government and intelligence officials including Vice President Dick Cheney, Secretary of State Colin Powell, Secretary of Defense Donald Rumsfeld, National Security Advisor Condoleezza Rice, Attorney General John Ashcroft, White House Counsel Alberto Gonzales, CIA Director George Tenet and CIA General Counsel Scott Muller ordered, facilitated the commission of, otherwise contributed to the commission of, or knew about but did nothing to prevent or punish, these alleged crimes, pursuant to articles 25(3)(b), (c) and (d), and 28(a) of the Rome Statute.
A summary of that open-source evidence follows.
On Jan. 28, 2003, then-CIA Director George Tenet signed the authorization for CIA officers to use so-called ‘Enhanced Interrogation Techniques’ (EITs) to obtain intelligence from detainees, including stress positions, deprivation of sleep beyond 72 hours, grasp, holding and slapping, confinement in cramped spaces containing insects, and water-boarding. In the same document, he formalized the existing practice of requiring specific CIA headquarters approvals prior to the application of EITs.
To complement the use of EITs, harsh conditions were imposed in detention, including the use of solitary confinement, hooding, black-out goggles and sound-blocking earphones, exposure to extreme cold and heat, use of dogs, enforced nudity, diapering, sexual humiliation, and so-called ‘rectal rehydration’ and ‘feeding.’ Approximately 39 of the 119 CIA detainees were subject to this treatment.
In a declassified 2015 letter to his lawyer, CIA detainee Ammar al-Baluchi, who had been transferred to Guantánamo Bay, Cuba, described what EITs meant in practice:
When I was suspended to the cieling (sic) there were 20 or more elements at play but before I get into that let me stop. When you read the list of EIT (There are more stuff which were never mentioned in the list) for example you would find prolonged standing or even suspention (sic) and it misleads to think that the US Gov agents were using one torture method at a time. Now back to suspention (sic), I wasn’t just being suspending to the cieling (sic) I was naked, starved, dehydrated, cold hooded, verbally threatened, in Pain from the beating and waterdrowning as my Head smashed by hitting against the wall for Dozen and Dozen of times my ears were exploding from the Blasting harsh music (which is still stuck in my Head) sleep deprived for weeks, I was shacking (sic) and trembling my legs barely supported my weight as my Hands were pulled even higher above my Head after I complained that the Handcuffs were so tight as if cutting through my wrists, then my legs start to swallow (sic) as a result of long suspention (sic) I start screaming and the Doctor came with a taPe measure, wrapped it around my leg and to my utmost shock the Doctor told the Interrogators NO that wasn’t enough and my leg should get more swollen !!
EITs and harsh conditions of detention were employed at the direction of senior CIA officials, and with the knowledge and approval of the highest echelons of the U.S. government. For example, on July 29, 2003, Vice President Dick Cheney, National Security Advisor Condoleezza Rice, Attorney General John Ashcroft, White House Counsel Alberto Gonzales, and CIA Director George Tenet met to discuss the CIA’s current, past, and future use of EITs on detainees.
At the meeting, CIA General Counsel Scott Muller described the waterboard technique and stated it had been used against CIA detainees Khalid Sheik Mohammed 119 times and Abu Zubaydah 42 times. (These figures were wrong; Khalid Sheik Mohammed was actually waterboarded 183 times and Abu Zubaydah at least 83 times.) Vice President Cheney confirmed that the CIA was executing Bush administration policy by carrying out its interrogation program. At a later meeting, on Sept. 16, 2003, Secretary of State Colin Powell and Secretary of Defense Donald Rumsfeld were similarly briefed.
Admissions regarding the scope and nature of the program have been made publicly by the CIA. For example, in the CIA Inspector General John Helgerson’s May 2004 review of the EIT program, CIA officers expressed to him – unsolicited – their concern about the possibility of legal action resulting from their participation in the interrogation program. One officer said that he feared that CIA officers would one day wind up on a “wanted list” to appear before the ICC for war crimes. Another said “ten years from now we are going to be sorry we’re doing this… [but] it has to be done.”
Multiple senior U.S. government and intelligence officials have also admitted their involvement, including in television interviews and in their own memoirs. President Obama admitted that the U.S. government, after the Sept. 11, 2001 attacks, “did some things that were wrong […] we tortured some folks.”
The CIA’s conduct is supported by a wealth of publicly available information. Most importantly, the Executive Summary of the U.S. Senate Select Committee on Intelligence’s December 2014 report on the CIA detention and interrogation program (SSCI report) contains forensic detail about the EIT program. It is based on more than six million pages of operational cables, intelligence reports, internal memos, emails, briefing materials, interview transcripts, contracts, and other records. Its Appendix 2 contains the list of all CIA detainees and the length of time they spent in detention.
The CIA was given an opportunity to comment on the SSCI report before it was released. It made no suggestion that any of the information about the torture program summarized above was inaccurate. On the contrary, then-CIA Director, John Brennan, after a “comprehensive and thorough review of the Study,” acknowledged that EITs were used on detainees under CIA control, and confirmed that the “confinement conditions and treatment of high-profile detainees like Abu Zubaydah were closely scrutinized at all levels of management from the outset.”
There are also the meticulous European Court of Human Rights judgments Al Nashiri v. Poland, Al Nashiri v. Romania and Abu Zubaydah v. Lithuania, in which the Court concluded beyond a reasonable doubt that there had been “a violation of Article 3 of the Convention [the prohibition of torture] in its substantive aspect, on account of the respondent State’s complicity in the CIA High-Value Detainee Programme in that it enabled the U.S. authorities to subject the applicant to inhuman treatment on its territory.” Justice Elena Kagan of the U.S. Supreme Court said recently, “there’s plenty of evidence that [Abu Zubaydah] was tortured.”
Additional evidence has been gathered by non-state actors, including the painstaking investigation by The Rendition Project. Their report references not only the SSCI report, but also locational data from thousands of declassified CIA cables and records relating to CIA rendition operations, including company invoices, pilot logs, landing records and aircraft communications data, multiple first-hand accounts of torture from former CIA prisoners, and hundreds of additional declassified U.S. government documents. All of these are available to the OTP, on websites like the National Security Archive’s Torture Archive.
The Prosecutor’s Decision
The OTP’s investigation in Afghanistan has progressed slowly from the start. The initial November 2017 request to open an investigation was rejected by a Pre-Trial Chamber of the ICC, after an unusually long delay of nearly 18 months. On March 5, 2020, the Appeals Chamber overturned the Pre-Trial Chamber’s decision, authorizing the OTP to investigate crimes committed within the context of the Afghanistan situation since July 1, 2002, including alleged CIA crimes.
On March 26, 2020, the government of Afghanistan requested the Prosecutor to defer the investigation. The OTP thereafter deferred its investigations as required by the Rome Statute.
On Sept. 27, 2021, the newly elected Prosecutor Khan announced that he had filed an application for an expedited order under article 18(2) of the Rome Statute. He requested to resume the OTP’s investigation in the Afghanistan situation, stating “there is no longer the prospect of genuine and effective domestic investigations into Article 5 crimes within Afghanistan,” due to the recent change in the Afghan government. He announced that his office would “focus [the OTP’s] investigations in Afghanistan on crimes allegedly committed by the Taliban and the Islamic State – Khorasan Province (‘IS-K’) and to deprioritize other aspects of this investigation.”
Although the OTP’s investigation against U.S. nationals, including members of the CIA, was not mentioned by name, Prosecutor Khan’s decision to “deprioritize other aspects of this investigation” effectively kills it off – at least temporarily – despite it having formed an integral basis of the OTP’s original request to the Pre-Trial Chamber in 2017, filed by the former Prosecutor Fatou Bensouda.
Shockwaves from the decision reverberated around the legal and academic community, and civil society. Observers have been uniformly critical. Katherine Gallagher, lawyer of alleged CIA torture victims Sharqawi Al Hajj and Guleed Duran, tweeted that she had not been informed prior to the announcement. She and other legal representatives of victims subsequently filed two joint responses (here and here) to the Prosecutor’s request, arguing forcefully that “such a widescale criminal enterprise, and the long-running impunity for those who bear the greatest responsibility, should remain of great concern to the Office of the Prosecutor.” Kate Clarke commented that this decision came as a shock: “Nobody was expecting [Prosecutor Khan] to narrow the focus of the investigation as he has done.” Foreign Affairs explained “why the Court shouldn’t let America off the hook.” Amnesty International was “deeply concerned by Prosecutor Khan’s willingness to bow to [S]tates’ political and resource pressure,” and issued a powerful statement condemning the decision.
In contrast, the U.S. State Department announced it was “pleased” with the decision.
On Nov. 8, 2021, the Afghanistan Pre-Trial Chamber weighed in on the Prosecutor’s Sept. 27, 2021 application (emphasis in original):
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[…] the Chamber is aware that the selection of potential cases within a situation under investigation pertains exclusively to the Prosecutor’s purview. However, the Chamber reminds the Prosecutor that a proper investigation should focus first on crimes, and then on identifying who the responsible persons of those crimes are. Not only impartiality, but also appearance of impartiality, is a sine qua non requirement for justice to contribute to peace and reconciliation. […] the Chamber reminds the Prosecutor that the duties and obligations as regards victims should indeed inform its investigative and prosecuting action at all stages.
The Reasoning Behind the Decision
In his Sept. 27 statement, Prosecutor Khan suggested that gravity, resources, the need to “construct credible cases capable of being proved beyond reasonable doubt in the courtroom,” and the potential for complementarity were the bases for his decision. Under scrutiny, however, these do not appear to be credible justifications for the narrowing of the OTP’s investigation.
Gravity
The first of Prosecutor Khan’s justifications appeared to be the gravity of the alleged crimes. The statement suggests that the gravity of (ongoing) Taliban and IS-K crimes are greater than the others in the situation, justifying a narrow investigation.
ICC jurisprudence is clear that quantitative criteria, including the number of victims, do not alone determine the gravity of a given case. In the Abu Garda case, the Pre-Trial Chamber held that factors to be considered in determining the gravity of the case for admissibility purposes are similar to those taken into account for sentencing purposes: “The extent of damage caused, in particular, the harm caused to victims and their families, the nature of the unlawful behaviour and the means employed to execute the crime.” The OTP’s Case Selection Policy Paper also underscores that gravity is both a qualitative and quantitative assessment.
Although in one view torture might be considered a less grave criminal act than murder, for example, because its consequences are not irreversible, torture committed at the direction of the highest levels of the U.S. government is extremely grave. Such governmental abuse, facilitated by a sophisticated legal bureaucracy and masked by Orwellian doublespeak, amounts to a breach of trust – generally considered an aggravating factor in the sentencing of crimes.
Indeed, when the Appeals Chamber overturned the Afghanistan Pre-Trial Chamber’s decision to halt the investigation, it left undisturbed the Pre-Trial Chamber’s finding that the alleged crimes committed by CIA personnel were of sufficient gravity:
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In relation to the crimes allegedly committed by the ANSF, the US forces and CIA, the Chamber notes the gravity per se of the crime of torture, which is radically banned by international law, and the circumstance that the conducts have allegedly been committed by public officials in their functions.
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Conclusively, the Chamber finds that the gravity threshold under article 17(l)(d) is met in respect of all the ‘categories’ of crimes for which the Prosecution requests authorisation to investigate.
Once this gravity threshold is met, the OTP appears to be legally bound to pursue all investigative lines. The Appeals Chamber held in its March 5, 2020 judgment that:
The Prosecutor’s duty, according to article 54(1) of the Statute, is ‘to establish the truth’. Therefore, in order to obtain a full picture of the relevant facts, their potential legal characterisation as specific crimes under the jurisdiction of the Court, and the responsibility of the various actors that may be involved, the Prosecutor must carry out an investigation into the situation as a whole.
Essentially, although the Prosecutor may be at liberty to stagger its investigation, once a situation is grave enough, the Prosecutor must –– at some point –– follow the evidence and investigate all potential cases of sufficient gravity arising from the situation. Prosecutor Khan’s decision to deprioritize the CIA investigation and instead merely to “preserve evidence,” appears to disregard this binding jurisprudence and the OTP’s duty under Article 54 of the Rome Statute.
Resources
The second of Prosecutor Khan’s barriers to conducting multiple sub-investigations in the Afghanistan situation was practical, namely the limited resources at his disposal.
In the proposed Budget for 2022, Prosecutor Khan outlined an exciting plan to shake things up at the OTP. This includes a restructured Immediate Office and new Public Information Office, as well as additional high-level positions. To implement these changes, he seeks an 8.4 percent budget increase.
This budget increase does not include any request, however, for investigative resources for the Afghanistan investigation. Indeed, consistent with his Sept. 27 statement, Prosecutor Khan informed the Assembly of States Parties (ASP) in the document that his “Office is not currently taking active investigative steps” into the situation in Afghanistan.
Although severe resource constraints are a reality at the OTP given the dozens of ongoing preliminary examinations, investigations, and prosecutions, it is difficult to credit the Prosecutor’s resource justification when his 2022 budget proposal does not ask the ASP for additional funds for (cyber-) investigators or desk analysts.
Prospects of the Investigation
The third rationale behind narrowing the OTP’s activities in the Afghanistan situation was to focus on “construct[ing] credible cases capable of being proved beyond reasonable doubt in the courtroom.” This suggests that Prosecutor Khan might be concerned about the courtroom prospects of the CIA investigation. It is eminently reasonable that for such a high-stakes decision, he would wish to be certain of a return on his investment of time and resources.
These concerns are likely to center around the prospect of securing evidence in the face of unprecedented U.S. hostility. As I’ve said elsewhere, State cooperation plays an integral role in the investigation and prosecution of crimes at international courts and tribunals. Without State cooperation, cases in Libya and (until recently) Sudan have not been able to proceed.
But this investigation is unique. U.S. cooperation to access witnesses and crime scenes is less critical, due to the global scale of the alleged crimes and the evidence that is available to prosecute the case. Multiple former CIA detainees now live outside the United States. Others’ lawyers have already met with the OTP. Former black sites in Poland, Romania and Lithuania are a short flight away. Abundant open-source evidence, including copies of CIA Director George Tenet’s signed orders authorizing EITs and flight plans of aircrafts transporting CIA detainees, is freely available. Based from a computer in The Hague, the investigation could rate among the OTP’s quickest and cheapest.
For this reason, a lack of resources and the prospects of the investigation do not appear to be convincing justifications to deprioritize.
Complementarity
The last of Prosecutor Khan’s stated justifications was to “promote accountability efforts within the framework of the principle of complementarity” for the deprioritized investigations. This potentially signals a push by the new Prosecutor to breathe life into Rome Statute’s complementary regime. Given the OTP’s heavy case load and the ICC’s mandate as “a court of last resort”, this is certainly a positive development.
But the CIA investigation is clearly not the best choice to begin this new push. Inviting the United States to undertake domestic accountability efforts in relation to the CIA torture program is not feasible. The U.S. government – through successive administrations – has demonstrated its unwillingness to hold accountable former senior officials of the CIA and of the executive branch for acts committed during its intervention in Afghanistan. President Obama said in 2009 that he had “a belief that we need to look forward as opposed to looking backwards.” There is no indication that a future U.S. government will change that position.
One argument advanced by the United States is that it has already subjected the torture allegations to due process, even though that has not led to prosecutions. A 2008 investigation led by U.S. Attorney John Durham looked into 101 cases of detainee abuse and brought no charges, closing 99 of the 101 cases in 2011 and the remaining two in 2012. There is no evidence to suggest that Durham interviewed any current or former detainees in the course of his enquiries. Further, Attorney General Eric Holder had set strict limits to the Durham inquiry, making clear that “the Department of Justice [would] not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.”
There is the real risk that Prosecutor Khan’s decision – and the complementarity rationale lying behind it – may be seen, if he gives no further explanation, as an acceptance of this argument.
The Implications of the Decision
Prosecutor Khan has just assumed office. He is acknowledged by his peers to be sharp, motivated, and dynamic. Prosecutor Khan obviously wants to succeed, and to avoid the overt antagonism demonstrated by the United States to his predecessor. He will be aware that there is no surer way to stymy his own efforts than to carry the CIA investigation to term and potentially to seek arrest warrants against senior retired U.S. government and intelligence officials.
Perhaps this decision – in addition to resource constraints, gravity and the others cited in the statement – was inspired by a clear-eyed assessment of this hostile political landscape. Perhaps the OTP, accepting the realities of international justice, made the tough decision to re-orient its limited efforts to where they will have the greatest impact. This is a call about which we must afford a margin of discretion to the Prosecutor.
The real problem lies in the implications of any such decision. For years the ICC and the OTP have been faced with criticism that the court is a neo-colonialist enterprise engaged in ‘race-hunting,’ as demonstrated by the fact that every person brought to trial thus far was born in Africa. This criticism has been robustly and coherently rebutted by the former prosecutor. For Prosecutor Khan to begin his tenure with a decision not to prioritize the investigation of such a well-evidenced case against a powerful western actor may have a chilling effect on those who have previously been staunch supporters of the Office’s position.
Further, at the ICC, few of the cases are free of political consequences. The decision taken here may prompt concerns about whether similar resource-based decisions will be taken to narrow other contentious OTP investigations. What to expect in the Palestine investigation – which promises to investigate and potentially prosecute crimes in the context of one of the most intractable political quagmires of the last century, and one in which the United States is also invested? What of the Georgia investigation, which heavily implicates Russian interests? Indefinite “deprioritization” suggests that justice may be sacrificed in difficult cases. For the international community, which set up a court to do exactly the opposite, this decision sends a message at best contradictory and at worst deeply problematic.
Finally, failing to press ahead with the CIA case misses an opportunity to enable a fundamental argument about the ICC’s jurisdiction to be resolved. There is a loud body of opinion that customary international law prohibits the ICC from exercising its jurisdiction over individuals who are not nationals of States Parties. This view is advanced despite clear provisions of the Rome Statute that allow individuals to be prosecuted where they have committed crimes on the territory of States Parties. Pursuing the CIA investigation would enable this vitally important matter to be litigated and resolved (perhaps even as a preliminary point), bringing welcome certainty to the law.
Conclusion
If, pursuant to Prosecutor Khan’s statement, the OTP has reversed course and now intends to hold the CIA investigation in abeyance, let it explain clearly for how long. If the OTP intends to close the investigation, let it be equally clear. Although there is no obligation, any clarification via additional statement, interview, or press conference would be warmly welcomed. Remaining mute is the silent killer for international justice and for the victims.
Observers will recognize a phrase the former Prosecutor Fatou Bensouda used to repeat ad nauseum: “We go where the evidence leads, without fear or favour.” Today, the victims of torture at the hands of the CIA, in black sites in Afghanistan and around the world, are questioning if that maxim still holds true.
Image: International Criminal Court Prosecutor Karim Khan listens during a press conference in Bogota, October 27, 2021. – (Photo by DANIEL MUNOZ/AFP via Getty Images)