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International Criminal Court Prosecutor Recommends Investigation of Potential War Crimes in Afghanistan, Including Actions by U.S. Military and Central Intelligence Agency
Published online by Cambridge University Press: 07 September 2017
Extract
On November 14, 2016, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) released its annual Report on Preliminary Examination Activities (the Report). The Report contained the OTP's updates on preliminary examinations of several situations, including in Afghanistan. Of particular note, the OTP announced that it had identified a reasonable basis to seek Pre-Trial Chamber authorization for an investigation into allegations of war crimes committed by the United States—primarily from 2003 to 2004, but in some cases as recently as December 2014.
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- International Criminal Law
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- Copyright © 2017 by The American Society of International Law
References
1 See generally Office of the Prosecutor, Int'l Crim. Ct., Report on Preliminary Examination Activities (2016) (Nov. 14, 2016), available at https:// www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf.
2 See id., paras. 17–20.
3 See infra notes 18–21 and corresponding text (describing allegations in more detail).
4 Id., para. 195.
5 Id. The ISAF was established by the UN Security Council in Resolution 1386, and later came under NATO command. Id.
6 See id., para. 196.
7 See id.
8 Rome Statute of the International Criminal Court, Art. 12, para. 2(a), July 17, 1998, 2187 UNTS 3 [hereinafter Rome Statute].
9 Office of the Prosecutor, supra note 1, para. 193; see also Rome Statute, supra note 8, Art. 126, para. 2 (addressing ratification and entry into force).
10 Office of the Prosecutor, supra note 1, paras. 199–200.
11 Id., para. 194.
12 Id., para. 200.
13 Id., para. 192.
14 Id., para. 3; see also Rome Statute, supra note 8, Art. 15(3) (“If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected.”).
15 Rome Statute, supra note 8, Art. 53, para. 1(a)–(c). Admissibility requires consideration of two separate factors. Office of the Prosecutor, supra note 1, para. 5. The first, complementarity, “involves an examination of the existence of relevant national proceedings in relation to the potential cases being considered for investigation by the [OTP].” Id., para. 6. The second, gravity, “includes an assessment of the scale, nature, manner of commission of the crimes, and their impact, bearing in mind the potential cases that would likely arise from an investigation of the situation.” Id., para. 7.
16 Rome Statute, supra note 8, Art. 15(4).
17 Office of the Prosecutor, supra note 1, para. 198; see also Rome Statute, supra note 8, Art. 5, para. 1(b)–(c) (noting that “[c]rimes against humanity” and “[w]ar crimes” fall within the ICC's jurisdiction).
18 Office of the Prosecutor, supra note 1, para. 208.
19 [Editors’ note: These provisions define “war crimes” to include, respectively, “[v]iolence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture”; “[c]ommitting outrages upon personal dignity, in particular humiliating and degrading treatment”; and “[c]ommitting rape, sexual slavery, enforced prostitution, forced pregnancy, … enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions.” Rome Statute, supra note 8, Art. 8, para. 2(c)(i)–(ii), (e)(vi).]
20 Office of the Prosecutor, supra note 1, paras. 211–13.
21 See supra note 15 (discussing complementarity and gravity components of admissibility).
22 See generally U.S. Dep't of Justice Press Release, Statement of Attorney General Eric Holder on Closure of Investigation into the Interrogation of Certain Detainees (Aug. 30, 2012), at https://www.justice.gov/opa/pr/statement-attorney-general-eric-holder-closure-investigation-interrogation-certain-detainees (providing more details about the background and results of the investigation, which was conducted by Assistant U.S. Attorney John Durham).
23 Office of the Prosecutor, supra note 1, paras. 219–24.
24 Id., para. 230.
25 U.S. Dep't of State Press Release, Daily Press Briefing by Elizabeth Trudeau (Nov. 15, 2016), at https://2009-2017.state.gov/r/pa/prs/dpb/2016/11/264350.htm.
26 Id. Trudeau did not elaborate on the basis for this assertion regarding ICC jurisdiction.
27 Id.
28 Id.
29 Id. Worth recalling in this regard is President Obama's Executive Order 13491, issued on January 22, 2009. See Exec. Order No. 13,491, 3 C.F.R. §199 (2009). That order made three primary changes to the United States’ interrogation program. First, it revoked Executive Order 13440, issued by President Bush, which had identified the acceptable “conditions of confinement and interrogation practices … to be used with an alien detainee who [wa]s determined … to be a member or part of or supporting al Qaeda, the Taliban, or associated organizations,” such that “a program of detention and interrogation approved by the Director of the C[IA] [would] fully compl[y] with the obligations of the United States under Common Article 3 [of the Geneva Conventions].” Exec. Order No. 13,440 §3(b), 3 C.F.R. §229, 230 (2007). Second, the order required:
Consistent with the requirements of the Federal torture statute, 18 U.S.C. 2340–2340A, section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd, the Convention Against Torture [and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, 1465 U.N.T.S. 85, S. Treaty Doc. No. 100–20 (1988)], Common Article 3, and other laws regulating the treatment and interrogation of individuals detained in any armed conflict, such persons shall in all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment, and torture), nor to outrages upon personal dignity (including humiliating and degrading treatment), whenever such individuals are in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States.
Exec. Order No. 13,491 §3(a), 3 C.F.R. §199, 200. In addition, the order stated that “an individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2–22.3.” Id. §3(b), 3 C.F.R. §199, 200–01. Third, the order indicated that “[t]he CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future.” Id. §4(a), 3 C.F.R. §199, 201.
30 U.S. Dep't of State Press Release, U.S. Signs 100th Article 98 Agreement (May 3, 2005), at https://2001-2009.state.gov/r/pa/prs/ps/2005/45573.htm.
31 See Resources: Bilateral Immunity Agreement Campaign, Am. Non-Governmental Orgs. Coal. for the Int'l Crim. Ct., at http://www.amicc.org/bilateral-immunity-agreements. That BIA was signed on September 20, 2002, Agreement Regarding the Surrender of Persons to the International Criminal Court, U.S.-Afghanistan, Aug. 23, 2003, Temp. State Dep't No. 03-119, KAV 6308, available at https:// www.state.gov/documents/organization/183325.pdf [hereinafter Afghanistan BIA], and it is still in force, see U.S. Dep't of State, Treaties in Force: A List of Treaties and Other International Agreements of the United States in Force on January 1, 2016 2, available at https:// www.state.gov/documents/organization/267489.pdf. The United States also executed a BIA with Romania on August 1, 2002. Philip T. Reeker, Press Statement, U.S. and Romania Sign Article 98 Agreement, U.S. Dept. of State (Aug. 1, 2002), at https://2001-2009.state.gov/r/pa/prs/ps/2002/12393.htm. However, it appears that the United States does not currently view that BIA as being in force. See U.S. Dep't of State, Treaties in Force, supra, at 370–73 (listing agreements in force with Romania).
32 Afghanistan BIA, supra note 31, at 1.
33 Rome Statute, supra note 8, Art. 98, para. 2; see also id. Art. 89, para. 1 (“States Parties shall, in accordance with the provisions of … Part [IX of the Statute] and the procedure under their national law, comply with requests for arrest and surrender.”).
34 See Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice of the United States Relating to International Law, 108 AJIL 547, 549–50 (2014)Google Scholar (summarizing background and criticism of United States’ use of BIAs); see also Emily C. Barbour & Matthew C. Weed, The International Criminal Court (ICC): Jurisdiction, Extradition, and U.S. Policy 7–10 (Mar. 16, 2010), available at https://fas.org/sgp/crs/row/R41116.pdf (discussing possible effects of BIAs with respect to Rome Statute provisions).
35 See Rome Statute, supra note 8, Art. 15, paras. 3–4. The Pre-Trial Chamber applies the same factors as the OTP in deciding whether to authorize the investigation. It has interpreted the reasonable basis standard to require “a sensible or reasonable justification for a belief that a crime falling within the jurisdiction of the Court ‘has been or is being committed.’” Situation in the Republic of Kenya, Case No. ICC-01/09-19-Corr, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, para. 35 (Mar. 31, 2010).
36 David Bosco, Exclusive: International Criminal Court Poised to Open Investigation into War Crimes in Afghanistan, Foreign Policy (Oct. 31, 2016), at http://foreignpolicy.com/2016/10/31/exclusive-international-criminal-court-poised-to-open-investigation-into-war-crimes-in-afghanistan/.
37 Id.